Wills Bill

METIRIA TUREI (Green) Link to this

The Green Party has some amendments on the Table—on Supplementary Order Paper 118 in my name. We are proposing to amend clause 10 of this bill. The two amendments we seek to make are to add as an exception, if you like, to the current age-limit requirement for making a will in this legislation a person under 18 who has a dependent child or dependent children. We think that young people who have taken on responsibilities as an adult should be entitled to the full legal protection, rights, and responsibilities of adults.

In the circumstances of the legislation there are some exceptions to the 18-year-old rule. I have talked to the officials about that, and they accept and understand that using the age of 18 as an indication of adulthood is a very blunt instrument for doing so. There is significant legislation in overseas jurisdictions, most classically from England—the Gillick case; those kinds of things—that shows that the age of maturity is a developmental stage and differs for each young person. But for the purposes of legislation, age is often the only really useful tool, so that is why the age-limit is set at 18 in this bill. But there are exceptions to that in the legislation, and those exceptions include situations where a young person has entered into a civil union, a marriage, or a de facto relationship. The key issue here is that all three of those states require third-party agreement to those young people being able to enter into them. A person under 18 cannot marry without parental consent or the consent of the Family Court, and it is the same for de facto relationships and for civil unions.

So the principle in the bill is that those under 18 still have to have some form of third-party consent to the state that gives them the exception that enables them to be able to make a will. I can understand the point of that—I really do. But there are some situations where young people find themselves members of the adult community and they have not needed consent. The most obvious example is when they have a child. They do not have to have consent to have sex, frankly, and sex often leads to the consequence—as many of us know—of having children. That state of affairs does not require third-party consent, it does not require a Family Court to agree, and it does not require the parents to agree—in fact, it is often completely without the parents’ agreement, but none the less it does happen.

Surely, when young people find themselves in the situation, entirely within the bounds of the law—totally lawfully—of having a dependent child or dependent children, they are then expected by the rest of the community to take on the responsibilities of adulthood. They are expected to raise their children properly, to find ways of supporting those children, and to make sure those children are properly fed and cared for, are educated, and have good, healthy lives. Sometimes they need support in order to do that—many of them do it successfully without support—but they are members of the adult community from that point on. Surely, as far as we can within the law, and knowing that we have to use many blunt instruments in order to put in place these kinds of principles, we should accept and understand that young people who have children in those circumstances are members of the adult community and are therefore entitled to the full responsibilities and rights of adults.

It is certainly true that the child of a young person who dies intestate inherits that young person’s property. So this provision is not necessarily about just protecting the baby’s entitlement to inherit from his or her parent; that does happen as part of the process of law. But the young person may want to make other dispositions about his or her property—other dispositions to other members of the family—or may have other concerns about his or her property. A young person may have significant amounts of property. It is certainly true that many young people are working a lot at the moment in order to protect themselves against the difficulty of student loans—that is something we have discovered recently. So young people sometimes have quite reasonable amounts of property, and certainly as parents they will have property, interests, and concerns that they want to take care of in a will. Surely, making a will is such a state of responsibility, and such an indication of a person taking responsibility for his or her life, that those young people who are in a situation where they have children should be entitled to take that step.

I urge members to support this amendment.

CHRISTOPHER FINLAYSON (National) Link to this

I reflected long and hard on Supplementary Order Paper 118 proposed by the honourable member Metiria Turei, and I am loathe to disagree with her because I think she makes some very good points. The difficulty I have with her proposal, particularly in relation to the proposed change to clause 10(2), is that what she says makes a lot of sense in relation to a 16 or 17-year-old, but what about a 12 or 13-year-old? Can one honestly say that in those circumstances where a 12 or 13-year-old has a child that, as of right, that person will be able to understand the effect of making a will? I do not have confidence that that would be the case.

So although one has to agree with the honourable member that the age of 18 years is an artificial line in the sand, as it were, in my opinion probably the best way of dealing with it is to leave the legislation as it is so that a person under 18 years may make, change, revoke, and revive a will in the circumstances set out in that clause without the need for Family Court approval or a Family Court order. But in the circumstances that have been described by the honourable member, if someone is under the age of 18 years then the safeguards set out in subclause (4) of clause 10 should continue to apply. It could well be that over the years we will come to look at the age of 18 years and say “Well, that was too old.”, but for the moment the National Party considers that the legislation, as framed, has probably got it right.

I want to make a couple of other points, and they relate in particular to Subpart 3, “Military or seagoing persons”. I wonder whether the legislation is consistent and whether it is necessary to make a couple of changes for the sake of consistency. Let us have a quick look at them, and then perhaps the Minister could advise whether I am making something out of nothing.

The first relates to clause 33(2), which talks in the language of informal testamentary actions, and it relates in particular to members of the armed services making, changing, revoking, or reviving wills. As one can see from clause 6, we struck out the term “testamentary action”, because we thought that saying someone would be doing a testamentary action was a little bit convoluted and why not speak plain English and say “making, changing, revoking, or reviving a will”. Yet we have kept that term “testamentary action” in relation to military or seagoing persons. I think it is much better to express clause 34 in terms of “Military or seagoing persons may make, change, revoke, and revive wills informally”, rather than “Military or seagoing persons may do informal testamentary actions”.

Some consequential changes would also be needed to clause 35, “Oral informal testamentary actions”, because surely to goodness that can be expressed in slightly simpler terms. Clause 36, “Proof of informal testamentary actions”, would need to change. I refer members of the Committee to clause 37, because in clause 37(1)(b) we have both expressions. Members will see that the phrase to “do a testamentary action” has been deleted and instead we have—rightly so, in my submission—“make, change, revoke, or revive a will”, yet we still have this idea of informal testamentary action. I think that should be tidied up and I invite the member to make a couple of comments.

The second point—and maybe it is a reflection of the fact that this legislation has been hanging around for some time, but I do think it needs to be tidied up—concerns the schedule and consequential amendments to the schedule. A reference is made to the Evidence Amendment Act 1980 (No 2), omitting from it subsection (2) of section 12 and substituting: “(2) The statement is not admissible to prove that the requirements of the Wills Act 2006”—it will be 2007—“or the Wills Act 1837 of the United Kingdom Parliament have been satisfied.” I have hunted high and low in the Evidence Act 2006 for the equivalent provision. I do not know that it is there, but certainly this reference to the Evidence Amendment Act 1980 (No 2), which is shortly to be repealed, needs to be changed. So I invite the Minister’s comments on that.

Hon RICK BARKER (Minister of Internal Affairs) Link to this

I will consult with my officials shortly and come back with some comments on the Evidence Amendment Act (No 2) 1980, about which the member Christopher Finlayson made a very good point.

I will respond briefly to Metiria Turei and her Supplementary Order Paper 118. I make the comment that this issue was raised by a number of submitters to the Justice and Electoral Committee. The Ministry of Justice considered the submissions and made recommendations to the select committee that the bill stay as it is and that the submissions be rejected. That recommendation was made for a number of reasons. Firstly, it is accepted that it is a rather crude measure to set an age as a proxy for maturity, but that is what has been done. It is consistent throughout the legislation, and it is consistent with other legislation such as the contractual capacity of minors under the Minors’ Contracts Act 1969 and the second-hand brokers legislation. It is also consistent with the law relating to minors who wish to get married, to have a civil union, or to get into other relationships. The consent and support of a third party is required. The same regime is being suggested in this bill for people who wish to make wills.

I accept the member’s point that we need to consider people under the age of 18. The legislation does that. It does not prohibit people from making a will; it simply puts them on the same basis as other statutes. I know that one could argue that consistency is the last refuge of a fool, but consistency does have its positive attributes from time to time, and I think this is one of those occasions when some form of consistency is a positive.

Dr RICHARD WORTH (National) Link to this

Part 2 of the Wills Act has a number of subparts. The subpart I want to deal with in particular is Subpart 1, “Making, changing, revoking, and reviving wills”. This particular subpart, which deals with formal issues, was the subject of detailed comment by the Law Commission. It is the Law Commission’s report of October 1997 that finds expression in this legislation that is currently before us.

The requirements for the validity of wills are set in clause 11. In summary, they are that a will must be in writing; a will must be signed and witnessed; and the will-maker must sign the document or acknowledge that a person directed by the will-maker signed the document in the will-maker’s presence. That latter possibility deals with the issue of amanuensis, when there is a blind testator—a blind will-maker. At least two witnesses must be together in the will-maker’s presence when the will-maker signs the will. Each of those witnesses must state on the document, in the will-maker’s presence, that the witness was present when the will-maker complied with the provisions. Each witness must sign the document in the will-maker’s presence. These are very strict formal requirements; they are very old requirements. They are requirements that originally had a basis in seeking to limit, to the greatest extent possible, the fraudulent execution of wills.

It is one of the few areas of the law where many people who are not lawyers feel confident in making their own wills. Indeed, there is a flourishing business in selling home-made wills. A number of legal stationers will provide—on payment of a small fee—an appropriate form for a will, and then leave it to the will-maker to do what he or she thinks appropriate. These documents often create significant problems when the testator dies and the will is considered in the harsh light of the legal requirements.

There was a discussion by the Law Commission on these formal issues. The Commission saw it as critical that the provisions I have just touched on be maintained—that is, that a will should be signed or acknowledged in the presence of two witnesses together at the same time, each of whom signs in the presence of the testator. There were two main purposes behind that requirement. One was cautionary: to help the will-maker appreciate that the document being solemnly signed, if left unchanged, will, when the will-maker dies, determine who gets the will-maker’s property. The other main purpose was probative, as I have said, to ensure that what is put forward after the death of the will-maker is in fact a genuine expression of the testator’s testamentary intentions.

There were many traps associated with the execution of wills. Probably the most common was a circumstance where the will provided for a particular person to take an asset under the estate of the deceased, and that person had witnessed the will. In that circumstance, the disposition was void. So a witness seeking to be helpful to a will-maker might well find himself or herself cut out of the bounty that would otherwise have flowed to him or her, by dint of being a witness to the particular will.

The legislation does make some changes to the strict formal requirements. They are basically premised in this way: first, there does not seem to be a reason why the formalities should not be dispensed with if the testator’s intention that the document should operate as a will can be established by other means. That is directly relevant to the issue of home-made wills. Similarly, the court should be able to uphold a disposition to an interested witness—that is, a person who would take under the will—if satisfied that the testator intended the provision freely and voluntarily. Finally, if the testator had the necessary will-making intention, it should no longer be essential that his or her signature be at the foot, or the end, of the will. That is why, running on from clause 11, there are these specific provisions relating to witnesses and witnesses affected by dispositions made to them.

METIRIA TUREI (Green) Link to this

I will be brief. I want to thank both the Minister in the chair, Rick Barker, and Chris Finlayson for their comments on my amendment. I will refer briefly to Chris Finlayson’s point about 12 and 13-year-olds. Although his point is a bit understandable, it is not a good justification for opposing my amendment in and of itself. The circumstances in which 12 and 13-year-olds find themselves with dependent children are extremely rare, even in this country, and those very, very exceptional cases should not be sufficient justification to deny those 16 and 17-year-olds—who do have children more often than 12 and 13-year-olds—the chance to be legally part of the adult community.

The fact is that large numbers of young people still have children very early. It does affect Māori and, I think, Pacific young people—but particularly Māori—in terms of having children younger than the Pākehā population. So there is an issue here. There is a reasonable number of 16 and 17-year-olds having children who now still will not have the legal entitlement to make a will, and I do not think that it is justifiable to say that because 12 and 13-year-olds may, in very rare circumstances, find themselves in that position, that is justification for denying that other population from having this right.

I understand where the Minister is coming from with his comments about the amendment. I do note that there is an additional area of exceptions for the age 18 limit, which is around those people who are involved in the armed forces—those on operational service or going out as seafarers. Again, it is an example of the recognition that sometimes people under 18 have jobs that have significant responsibilities. They are undertaking significant responsibilities and they should then be able to have the responsibility, in law, of making a will. I do not think it is unreasonable to recommend that young people—16 and 17-year-olds—who have to be responsible for their families should be denied that opportunity.

I sat in on a number of the submissions on this bill, and on some of the consideration, and I thought the submissions were very good. The changes the select committee has made to the legislation have been very good, and we generally support the bill in its form. We think a very good job was done on it. But there is just this one area where I think the community is starting to accept more that young people have the right to be engaged in their world and legally recognised for that engagement.

I think Parliament needs to come to terms with its role in making sure there is equity among young people so that we do support their engagement and we do support their efforts to be involved in the wider world and their understanding of the legal rights and responsibilities they have, as a form of supporting and encouraging them to be included in the civic life of their community, as well. If this is one small way in which we can demonstrate that as a Parliament, I think it would be a very good thing, and I hope at least some members will support this amendment. Thank you.

KATE WILKINSON (National) Link to this

I am pleased to take a call on Part 2. I would just like to preface what I have to say by saying I am mindful that perhaps this bill runs the risk, while trying to simplify the law of wills, of actually ending up making it much more complicated, potentially more litigious, and more uncertain. The bill has changed terms that have long since been interpreted, defined, and decided on by the courts, and it introduces new terms that have yet to be tested, which may appear simple but may also end up being ambiguous, uncertain, and the subject of litigation.

With that in mind, I would like to draw the attention of the Committee to just a couple of the clauses in the bill, and I would ask the Minister to take a call to clarify what I think are reasonably valid queries. The first one is in relation to clause 12, “Witnesses”. Clause 12(1) states: “The person appointed as executor of a will may witness the will.”, and that is fine, but it does not actually say who can be a witness. So there is no age-limit for who can be a witness. A 16-year-old child with a child cannot make a will, but that person can actually be a witness to a will, and that seems to be something of an inconsistency. Under the old law—if one would like to call it that—the age used to be 18, and that seems to have been omitted from this provision.

The other issue about witnesses, and I know it seems trivial—I have been called a pedantic lawyer in the past—is that there are some dispositions that under clause 13 would be void if the disposition was to a witness, but there is nothing about whether a trustee can be a witness. A trustee can have control of trust property for up to 80 years, but there is certainly no exclusion from a trustee being a witness to a will, and I wonder whether that might lead to some unintended consequence. I would like the Minister perhaps to take a call on that, or seek some advice on the actual definition and the ability or capacity of witnesses.

To go further, I will make a comment in relation to how a will can be changed. I find it a bit demeaning that one’s last will and testament can be changed by describing something in a note. As long as it is in a note and witnessed, then that can end up being one’s last will and testament. Perhaps I am old-fashioned, but to me the formality of having a will or a codicil makes one think about what one’s last intentions are. To have it described as a note is, I think, a wee bit demeaning of the importance of what is being executed here.

The final point I will make is in relation to the revocation of a will. Clause 16 provides how a valid will, or part of a valid will, may be revoked, whether it is by a later will, a document in which the will-maker “makes it clear his or her intention to revoke the will”, or the “will-maker marries or enters a civil union”. The old law always used to be—and I used to have issues with this when I was in practice—that a will was not revoked on dissolution or divorce, or whatever one wants to call it. Often one would find couples, 2 years after their divorce or dissolution, thinking their house was in order and suddenly realising that they still had a valid will that left all their worldly possessions to their estranged spouse who still was not on the Christmas card list. So it can actually lead to some consequences not necessarily intended by the testator or the will-maker.

I notice that there is a provision in clause19, “Effect on will of will-maker’s marriage or civil union ending”. In a sense that covers a wee bit of that, but it does not cover a situation where the estranged or divorced spouse were intended to inherit, or if it were intended that that spouse still be the trustee—there is no provision for allowing that exclusion. I would appreciate the Minister taking a call on those two points, which I think are important.

CHRIS AUCHINVOLE (National) Link to this

I rise to speak largely on the proposed amendment to Part 2 of the Wills Bill. I guess I would like to say at the outset that to make yet another exception to clause 10 could defeat, to my mind, the real purpose of the member’s amendment, which would be—and this was touched on by almost all of the speakers—to seek a review of whether 18 is an appropriate age at which to consider people to be adults. I encourage the member to press for the wider consideration of that issue rather than to make an exception in this case. In my experience, in all sorts of fields, if one makes exceptions, that just goes on forever until it eventually can become a rule to make an exception.

To speak on the matter of ages as it refers to wills, I say the making of a will is a low-risk activity, and most laws that do not allow young people opportunities to do things that adults are able to do are intended to protect the child from harm. Here there should be no great harm attached. It is hard to see what harm can result from making a will, and one could be forgiven for being at a bit of a loss to understand why we have an age restriction on the legality of a will.

That restriction is all to do, though, with property, and with property comes all sorts of desires and intentions and also a need to protect the vulnerable. Wills relate to possessions, and most people are pretty aware of what their possessions are. If one has a possession, I think it is reasonable that one has the disposal of that possession as part of the entitlement that goes with it. Possessions and the ethics surrounding them are, to varying degrees, common to all cultures and people. I have had the opportunity to travel extensively in many different cultures, particularly throughout the South Pacific, during my time as an exporter and a Pacific trader. Cultural differences are huge between the various societies—