Wills Bill

CHRISTOPHER FINLAYSON Link to this

Yes. Doing a testamentary action is ambiguous and possibly offensive. Certainly, making a will seems to be a lot clearer. I am not quite so clear—picking up on what the member for Tauranga said—about whether there is such a problem with the term “testator” or “testatrix”, as opposed to ”will-maker”, but every endeavour has been made to simplify it. No one uses the term “testatrix” these days; I think it is considered sexist—and those proponents of political correctness on the other side will be able to assist in relation to that. “Testamentary document” is an awfully pompous term for a will, so every endeavour has been made to simplify it.

However, when I read through the legislation it does, at times, seem to be somewhat dense and unnecessarily verbose. That is why I like to use the terminology that in the old days—when Mr Chauvel was doing law—the reasonable man on the Clapham omnibus would have used; these days it would be the terminology that the reasonable person on the Kilbirnie bus would use. Perhaps one of the members whom I have nominated may care to stand, cast his or her eyes over the bill, and tell members whether the select committee has succeeded.

The other key aspect of Part 1 deals with the meaning of “will” and, although it does seem to take an eternity to state the definition, I think that all contingencies are covered. It means that a “will” will also mean a document that changes a will, revokes a will, revives a will, and is a codicil to a will. The only thing that I would say about clause 8(1B) is that there seems to be a tendency to use the word “that” rather than “which”. I think that is an unfortunate tendency in written English these days, but there we have it.

So Part 1 deals with the preliminary provisions. As Mr Chauvel said, it is really the first time, probably in the history of New Zealand, that there has been an opportunity to take a good look at legislation governing wills, because the principle Act is still the 1837 legislation. There have, of course, been some amendments to the Act and they are referred to in the schedules to this legislation. But this is the first time that we are to do it. Presumably it will be another 150 years—or more than 150 years—before Parliament looks at it again, so let us get it right this time. That is why clarity and simplicity in the area of wills is really the name of the game. Thank you.

Dr RICHARD WORTH Link to this

Well, some might say that, but some might also say it is an obvious error by people who have not looked at this legislation properly or sufficiently.

I would like to start by just for a moment contemplating what a will is. A will is a statement made by a will-maker of how the will-maker wants his or her property to be dealt with when he or she dies. There are two basic governing principles in the law of wills. The first is that a will-maker’s ascertainable intentions should be upheld. The second is that great care should be taken in determining whether what is claimed to be an expression of the will-maker’s wishes is genuinely so, because when a will operates upon a will-maker’s death, he or she is no longer present to speak for himself or herself.

Others have noted that what we are doing here is revamping old law contained in 1837 legislation. But, of course, as Mr Cosgrove would know, wills go back way before 1837. In fact, one looks at the early development of both the English common law and ecclesiastical law before the Wills Act to see that the English law was shaped by a very sharp divide between the rules relating to land and the rules governing other types of property. There is a distinction resulting from the importance of land tenure in the feudal system. So issues relating to succession to real property were the concern of the common law courts, and succession to personal property was dealt with by the ecclesiastical courts. The ecclesiastical courts had their day, and from the 17th century the Court of Chancery supplanted the role of the ecclesiastical courts in supervising the administration of deceased estates of personalty.

Much has been said about the simplification of the legislation. That is in itself a fine aspiration, but we also need to reflect that changes are not being made substantively to the law in any real or meaningful way by this legislation. One should not be trapped into thinking that this is a simple area of the law. It is not. It is, in fact, quite arcane, and I am certain that many lawyers have made many millions of dollars in the course of their professional careers from dealing with the type of issues that arise in connection with the validity of wills, the interpretation of wills, and the administration of estates.

In 1837 uniform rules governing the execution of wills of realty and personalty were imposed by the Wills Act. This is one of those rare illustrations of old English law that still sits on our statute book by dint of the Imperial Laws Application Act. As others have said, the Law Commission appropriately considered that there should be a new Wills Act. Why? Because it thought that it was appropriate to restate the law in language that is more contemporary and plain. It was thought that the law of wills should be, as Mr Finlayson has said, obvious to the intelligent layman. That was surely a worthy precept, and in some minor respects the substantive law of wills can usefully be modified.

So we see in Part 1 a definition of a will, which is in clause 8—I have already noted the drafting error that is there. “Will means a document that—(a) is made by a natural person; and (b) does any or all of the following: (i) disposes of property to which the person is entitled when he or she dies; or (ii) disposes of property to which the person’s personal representative becomes entitled as personal representative after the person’s death; or”—finally—“(iii) appoints a testamentary guardian.”

One looks at that definition in the context of what was in the Wills Act 1837 and sees immediately what the process of simplification has wrought. In the 1837 legislation, “will” was defined in this way: “The word ‘will’ shall extend to a testament, and to a codicil, and to an appointment by will or by writing in the nature of a will in exercise of a power, and also to a disposition by will and testament or devise of the custody and tuition of any child, by virtue of [the Tenures Abolition Act 1660], or by virtue of an Act passed in the Parliament of Ireland in the fourteenth and fifteenth years of the reign of King Charles the Second, intituled ‘An Act for taking away the Court of Wards and Liveries, and tenures in capite and by knight’s service,’ and to any other testamentary disposition;”. Is it not amazing that we have had that definition on our statute books since New Zealand came of age in 1840?

There are other illustrations for those who are interested in these issues and want to compare and contrast what was in the Wills Act of 1837 and what now emerges in this legislation.

I commend to the Committee, subject to the error that I have identified, Part 1 of this bill, and I certainly look forward to making substantial and continuing contributions as we look at the further errors to be found in Part 2.

Hon CLAYTON COSGROVE Link to this

I think he is a tortured soul; I do not think he needs our help. Mr Worth purports—

Hon CLAYTON COSGROVE Link to this

No, I do not in any way purport to be a lawyer, neither eminent nor otherwise; I leave it to the “member for Monaco” to take up that.

Mr Worth, in his words, has identified a mistake. Sadly, that is not true. A “will” as defined in clause 8(1) is a document “made by a natural person;”—correct. Because it is already defined as that, it is unnecessary and clumsy to refer to natural persons elsewhere. So the reference to natural persons was deliberately retained. It is the reason why the phrase “natural person” is not needed elsewhere. So to simplify it for the simple mind of Mr Worth, I say that it becomes the starting point for that definition, and it is not required right through.

I suggest that the test Mr Finlayson suggested, which was a very good suggestion, is that laypeople—and I assume that by “laypeople” he meant non-lawyers—actually apprise themselves of the simple language in this bill. I suggest to other people that to do so might be helpful. Mr Worth might like to take some legal lessons from the learned Mr Finlayson in respect of definitions in legislation.

I also suggest a person who would be very apt—primevally—to test whether the language is appropriate in this legislation would of course be Bob Clarkson. If Bob understands it, I think anyone will understand it. That is the acid test, and I invite Mr Clarkson to stand up and advise us—in big print, small words, or pictures—whether he understands this legislation. If it works for him, I think it will work for us all.

KATE WILKINSON Link to this

—and decency, because it is important. At the end of the day it is the last wish of a person. Once that person has died, of course, it is far too late.

I take the point that the language has been simplified, but I also make the point that the old language, which I must admit I have used for 27 years, has been tested over the years by all the cases. Some of this new language may need to be tested. As a young law graduate I learned how to write a will in situations such as sitting next to a hospital bed or even dining in a restaurant. I think that one of the wills I wrote on a table napkin is still as valid as it ever was.

The old language is comfortable, I must admit, but that is not to say we cannot move on. It is a challenge. As I understand it, the law is not written so that we can understand it; it is written so that we cannot misunderstand it. There is a big difference in that. Under this bill, though, whereas previously we used to “give, devise, and bequeath all our real and personal estate of whatsoever nature and wheresoever situate”, now we just “give our property”. In a sense the language is becoming more accessible to the ordinary person on the street.

I would like to draw the Committee’s attention to the meaning of “will”, because I do not believe it is totally sufficient. Although the bill tries to simplify the language, and perhaps it uses better language than that used in 1837, all it states, under clause 8(1) is that a will is a document that is made by a natural person and does any or all of the following: “(i) disposes of property to which the person is entitled when he or she dies; or (ii) disposes of property to which the person’s personal representative becomes entitled … or (iii) appoints a testamentary guardian.”

Wills do more than that, in this day and age. Wills appoint trustees and executors. Under this bill these wills do not, apparently. Wills can appoint trustees of existing trusts. Wills can provide directions as to how someone wants his or her funeral service or cremation to be conducted. One might laugh at that, but I have had the situation where a family disputed where the mother’s ashes should be laid to rest, and the three children of the family divided the mother’s ashes three ways. That is a true story.

So wills do more than just dispose of property; they can avoid a lot of family disagreements at a later stage. In the very nature of wills it is too late, when there is found to be an uncertainty in the will, to argue about it at that stage, because the testator—in the old days it was the testator or the testatrix; I did not mind which one it was—or in this day and age the will-maker, is not there to clarify exactly what his or her intentions were.

I ask the Minister to take a call on the definition of a will, because not every natural person, person natural, or otherwise has property to dispose of, but that does not preclude those persons from making a will. I suggest that this is depriving some people of having their last say—of being able to rest in peace, knowing that they have properly documented their last wishes, and knowing that their directions for disposal of their ashes, their burial directions, or their funeral directions will be complied with.

Under this bill I believe that there is an omission, and I believe that it would be very simple to fix. I believe it should be fixed. I think it will avoid some misunderstandings and some family disagreements at a later stage when it comes, perhaps, to dividing the ashes of someone’s dearly loved one. Wills are very important.

CHRIS AUCHINVOLE Link to this

—indeed, it was brief and I liked the points she made—“of how they want their property to be dealt with once they have died” was the definition of a will just given by my colleague Dr Richard Worth. I thought he spoke singularly well—indeed, all people have. They speak, of course, from a legal perspective and I welcome the invitation of my colleague Chris Finlayson to give a layperson’s point of view.

CHRIS AUCHINVOLE Link to this

I thank the member. Intelligent—I do not know if I would fit the category but I will just give an opinion anyway.

Wills become a fixation for some people. As Dr Worth said, and it is worth repeating, this is in fact an arcane law that is of great significance, and one that has been a huge earner for sections of the legal profession.

I note that the Minister has a tendency to make light of the points made by Dr Worth, and he was, I thought, slightly demeaning in the way he reflected on the ability of laypeople to voice their understanding of the technicalities of this bill. Well, I am a layperson and the Minister can choose to snigger, if he so chooses, at my interpretation and understanding of this bill, but I thoroughly enjoyed being part of the Justice and Electoral Committee to work through it.

I would like to pay tribute—and I have mentioned this to my colleague Mr Finlayson—to the explanations that were given to us by the officials who attended the select committee, because it was an incredibly technical bill to a layperson. It was incredibly technical but it was made very, very plain. I am happy to say that I am very pleased with the result. I think it will make things far easier for people to understand.

It is not uncommon for me to have people come to me in Greymouth, and in Motueka in the ever-increasingly marginal seat of West Coast - Tasman. They come in to see me because they cannot understand their position in a will. I suggest that they best see a solicitor, but they are people of incredibly tight means and they do not even know how to go about doing that. So it is very important that wills be straightforward.

I remember taking an overseas client who owned property in New Zealand to see a member of the legal profession—who was my own solicitor, and a really good one—in Auckland. I said that my friend wished to make a will for his New Zealand property that would have effect in New Zealand. He started to detail all the things that he wanted in it and I remember the lawyer asking “How much of your life do you wish to control from the grave?”.

CHRIS AUCHINVOLE Link to this

Yes, he was; they do exist. They do exist, I say to Mr Clarkson. If wills get too complex and if people try to control too much from the grave, wills are not going to work. So straightforward wills in straightforward language are a great advantage to the people of New Zealand, and I certainly support this bill. Thank you.

Hon CLAYTON COSGROVE Link to this

I am indebted to the member for his Celtic history lesson. I want to correct any misconception he had that I was not supporting Mr Finlayson’s eminent suggestion that laypeople—that is, non-lawyers—should actually look at this bill and give it a health check, as it were, for the simple nature of its language. So if he took that impression, he is wrong.

I would address one thing—

Hon CLAYTON COSGROVE Link to this

Thank goodness! We are all happy for that. I would address Ms Wilkinson’s point in respect of clause 8(1). It describes the two basic requirements that make a will. I think the point was raised in respect of the disposal of ashes and other requirements the deceased may have. I am advised that a will, of course, can do other things. It is not necessary, within the definition of a will in legislation, that they be prescribed. Indeed, if an executor is appointed in a will, I understand that the executor is charged with the disposal of remains, and can indeed, I am advised, dispose of them in any manner, regardless of the requirements laid out in a will. But it is not necessary, I am advised, that every aspect of every wish of a deceased person be prescribed in the legislation. There is nothing in this legislation that stops that level of prescription being placed in there by deceased persons themselves.