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NEW ZEALAND LAW COMMISSION

TE AKA MATUA O TE TURE

Report 41

Succession Law

A Succession (Wills) Act

October 1997

Wellington, New Zealand

Table of Contents

The Law Commission is an independent, publicly funded, central advisory body established by statute to undertake the systematic review, reform and development of the law of New Zealand. Its purpose is to help achieve law that is just, principled, and accessible, and that reflects the heritage and aspirations of the peoples of New Zealand.

The Commissioners are:

The Honourable Justice Baragwanath – President
Joanne Morris OBE
Judge Margaret Lee
DF Dugdale
Denese Henare ONZM

The Director of the Law Commission is Robert Buchanan

The office is at 89 The Terrace, Wellington
Postal address: PO Box 2590, Wellington 6001, New Zealand
Document Exchange Number: SP 23534
Telephone: (04) 473–3453, Facsimile: (04) 471–0959
E-mail: com@lawcom.govt.nz

Report/Law Commission, Wellington, 1997

ISSN 0113–2334 ISBN 1–877187–11–9

This report may be cited as: NZLC R41

Also published as Parliamentary Paper E 31AD

23 October 1997

Dear Minister

I am pleased to submit to you Report 41 of the Law Commission, Succession Law: A Succession (Wills) Act.

As you know this report is the Commission’s third to you this year on succession law. The earlier two concerned Homicidal Heirs (NZLC R38) and A Succession (Adjustment) Act (NZLC R39). Our work is continuing on ways that greater effect might be given to decisions about succession to ancestral property by Mäori.

As first contemplated the Commission’s project to review the law of succession also included a complete review of the Administration Act 1969. The Commission is now inclined to defer this aspect of the work for these three main reasons:

• Much of the 1969 Act (which itself largely restates verbatim even earlier provisions) could with benefit be revised. (Section 76, for example, provides sensibly, but in language that today is difficult to follow, that “there shall be no escheat to the Crown for want of heirs or successors”.) But interested parties informed us clearly that there are no serious current problems.
• The fact that no action has been taken to initiate parliamentary consideration of A New Property Law Act (NZLC R29, 1994) suggests that there is less political interest in updating systematically the statute book than there is in righting more particular wrongs.
• The intestacy provisions (see Part III of the 1969 Act) need to be kept under review. For example, if the provision to go to a widow or widower (the first $90 000) was right when it was last fixed (in 1987), then it now needs reconsidering. But any such review must await policy decisions following our recommendations in A Succession (Adjustment) Act (especially those concerning the entitlements of widows and widowers and the equal rights of de facto partners).

In the meantime, however, we are proceeding to research the conceptual basis of the system of intestate succession.

The need for this research is illustrated by the case where spouses have separated and divided their property by agreement or court order, but not obtained a court order for separation (sought only rarely), or for the dissolution of their marriage. Distribution on an intestacy should give effect either to the duties, or to the assumed wishes, of the intestate deceased. In this case, the existing law does neither. If either spouse dies intestate, the survivor may take a spouse’s share on the intestacy as if the division had not occurred and against what we assume the intestate would have wished.

In this report, however, the Commission recommends

• preserving in local legislation the essence of the familiar provisions of the Wills Act 1837 (UK),
• eliminating anomalies and anachronisms, and
• expressing the law in language that is more contemporary and plain.

The Commission recommends that Parliament enact the Succession (Wills) Act set out in this report. We consider that the enactment of the draft Act would be welcomed by all who are familiar with the law in this area.

Yours faithfully

The Hon Justice Baragwanath
President

The Hon Douglas Graham MP
Minister of Justice
Parliament House
WELLINGTON