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Preface

_IN 1993 THE LAW COMMISSION, with the approval of the Minister of Justice, undertook the succession project.

The purpose of the project is to review, reform and develop

• the Wills Act 1837 (UK)
• the Law Reform (Testamentary Promises) Act 1949
• the Family Protection Act 1955
• the Matrimonial Property Act 1963, and
• the Administration Act 1969.

The ultimate aim is to have a new Succession Act drafted in plain language which will

• provide for all these succession laws in one statute
• simplify the law
• enable better effect to be given to the intentions of will-makers, and
• take account of the diversity of New Zealand families.

The project has three main aspects: these are reviews of the law relating to

• TESTAMENTARY CLAIMS – The subject of this discussion paper. The Draft Testamentary Claims Act 199– proposed in this paper is the first part of a new Succession Act.
• SUCCESSION AS IT APPLIES TO MäORI FAMILIES – This is an area of intense interest to Mäori. The Commission has engaged Professor Pat Hohepa and Dr David Williams as consultants to advise on this aspect of the project, and is consulting with Mäori at regional and national levels.
• WILLS AND ADMINISTRATION (INCLUDING THE LAW OF INTESTACY) – The Commission is giving further consideration to this aspect of the project with a view to proposing necessary reforms. Work on this aspect of the project will proceed in conjunction with the Queensland Law Reform Commission reference (from the Standing Committee of Attorneys-General of Australia, SCAG) to make more uniform the succession laws of Australian States and Territories.

Our work on testamentary claims has been greatly helped by consultation with legal practitioners, legal academics, judges, social scientists and other specialists. We particularly appreciate the efforts of those who have provided internal papers for the Commission (see Appendix E). A complete list of those to whom we are indebted would be an impossibly large one. But we would further acknowledge the help we have received from these leaders of legal practitioner groups: J Campion, J Goodwin, J Grigg, R Perry, P Straubel and K Weatherall. We are also grateful to all members of these advisory groups. We emphasise nevertheless that the views expressed in this paper are those of the Commission and not necessarily those of the people who have helped us. The Draft Act provisions were prepared by Mr G C Thornton QC, Legislative Counsel. Finally, the Commission acknowledges the work of Ross Carter, a member of the research staff, who was largely responsible for drafting this paper.

This paper does more than discuss the issues and pose questions. It includes the Commission’s provisional conclusions following extensive research and considerable preliminary consultation. It also includes complete draft provisions for a Testamentary Claims Act and a commentary on them. The intention is to enable detailed and practical examination of our proposals. We emphasise that we are not committed to the views indicated, and our provisional conclusions should not be taken as precluding further consideration of the issues.

This is especially true of claims by children who can reasonably be independent. In this paper the Commission expresses no provisional conclusion on reform of adult children’s claims. Instead the Commission presents some reform options for comment and evaluation, and invites others’ views on what should be done.

Submissions or comments on this paper should be sent to the Director, Law Commission, PO Box 2590, Wellington, if possible, by Thursday 14 November 1996.

Any initial inquiries or informal comments can be directed to Ross Carter (Telephone: (04) 473 3453. E-mail: RCarter@lawcom.govt.nz)