INTRODUCTION

Definitions and principles

1 A WILL IS A STATEMENT by a will-maker (testator or testatrix) of how the will-maker wants his or her property (estate) to be dealt with when he or she dies. Two governing principles of the law of wills are

that a will-maker’s ascertainable intentions should be upheld, but also
that great care should be taken in determining whether what is claimed to be an expression of a will-maker’s wishes is genuinely so, because when a will operates (on a will-maker’s death) he or she is no longer present to speak for himself or herself.

Before the Wills Act 1837 (UK)

2 Until early in the seventeenth century the English law of wills was shaped by a sharp divide between the rules relating to land and those governing other types of property – a distinction resulting from the importance of land tenure in the feudal system. Succession to real property was the concern of the common law courts, and succession to personal property the concern of the ecclesiastical courts. From the seventeenth century, the Court of Chancery supplanted the role of the ecclesiastical courts in supervising the administration of deceased estates of personalty once probate had been granted.

The Wills Act 1837 (UK)

3 Uniform rules governing the execution of wills of realty and personalty were imposed by the Wills Act 1837 (UK). That Act remains in force in New Zealand to this day (see s 3(1) and the First Schedule to the Imperial Laws Application Act 1988). Despite amendments to accommodate changing social conditions (eg, in 1977 a provision was added about the effect on a will of the will-maker’s divorce), the 1837 Act remains the foundation stone of New Zealand’s law of wills. It seems that the provisions of the 1837 Act are at least generally understood by people with no legal training, and that it works well. We consider that fundamental change would be neither necessary nor wise.

A SUCCESSION (WILLS) ACT

4 The Law Commission considers that there is no need to change radically the substantive law of wills. We recommend a new Wills Act, however, because

if restated in language that is more contemporary and plain, the law of wills could be more readily understood and applied, and
in some minor respects the substantive law of wills can usefully be modernised.

The need for law in language that is more contemporary and plain

5 We do not need to labour this point.¹ Our main functions include advising on ways in which the law of New Zealand can be made as understandable and accessible as practicable. In our work we must also consider practicable simplifications of the expression and content of the law.²

6 Two short examples are likely to suffice. Take first the definition of “will” in the interpretation section of the 1837 (UK) Act:

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.

By contrast, section 4 of the draft Act (Definitions) provides more directly that

Will includes a codicil and any other testamentary disposition.

A second example is s 13 of the 1837 Act:

13 Publication of will not requisite

Every will executed in manner hereinbefore required shall be valid without any other publication thereof.

This section can be understood only if it is appreciated that the term “publication” was intended to mean a declaration by the testator to witnesses that the document shown to them was the testator’s will. This meaning would be provided for more directly by section 9 of the draft Act:

9 Will valid despite witness not knowing document witnessed was a will
A will which is executed in accordance with this Act is validly executed even if a witness to the will did not know that it was a will.

Formalities for making and revoking a will

7 We recommend no fundamental change to the requirement 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.

8 This requirement has two main purposes. One is 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 is probative: 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.

9 We recommend changes to the existing law only to permit these two purposes to be achieved in more ways. For example:

There seems no 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: section 10.
Similarly, the court should be able to uphold a disposition to an interested witness if satisfied that the testator intended the provision freely and voluntarily: section 11(2)(c).
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 end of the will, a perennial trap for do-it-yourself will-makers: section 8(2).

10 Section 17 of the draft Act defines slightly more widely than does the present law the acts effective to revoke a will. Under the present law dissolution of a marriage disentitles a former spouse from entitlement under a will or on an intestacy. A separation order disentitles a spouse from benefits on an intestacy, but there is no comparable provision in relation to entitlements under a will. Section 19 removes this anomaly.

Minors’ wills

11 The substantive changes to the existing law are that approval for a minor (any person under 18 years of age: section 4) to make a will may be granted generally rather than only for a specific proposal. The right to grant these approvals would be confined to the Family Court. The Public Trustee’s right to grant these approvals would not be continued: section 6.]

Construction and rectification

12 The rules for the use of extrinsic evidence are widened by the provisions of section 24, and section 28 permits rectification where the court is satisfied that the writing does not record correctly the testator’s intentions.

Informal will-making

13 Part 6 of the draft Act provides for informal will-making by members of the Armed Forces, seafarers at sea, and prisoners of war. Essentially, Part 6 would re-enact the Wills Amendment Act 1955, but it includes a modernised definition of privileged person (supplied by the Directorate of Legal Services of the New Zealand Defence Force). We note that Part 6 does not follow the trend in Australia against informal wills for the Armed Forces (New South Wales, for example, has abolished the special rules permitting informal will-making). Arguments in favour of abolishing the Armed Forces’ privilege include that:

it is the policy of the Armed Forces to facilitate formal will-making;
informal wills may increase the incidence of fraud;
there is less need for informal will-making if, as we recommend, courts are empowered to dispense with strict compliance with the formal requirements for a valid will; and
operational service is not the best context for calm and well-advised will-making.

14 As against these arguments, the New Zealand Defence Force is clear in its view that provision for informal will-making by the Armed Forces should remain. A member of the Armed Forces may be given short notice of dangerous active service. If he or she learns at the same time of a change in a relationship with an intended beneficiary, he or she may need to make, amend, or revoke a will urgently. In these circumstances it would appear unreasonable to require him or her to satisfy the usual formalities. The same arguments apply, perhaps even more strongly, to the circumstances of prisoners of war. The privilege for civilian seafarers is no less ancient than that of the Armed Forces and, if one is to be retained, so should the other.

Gifts to unincorporated bodies

15 Section 37 of the draft Act provides that gifts to unincorporated associations that are not charities should be treated as augmenting those associations’ general funds.

The source of the draft Act

16 In preparing the draft Act the Commission has drawn to a significant extent on work done in Australia. The Standing Committee of Attorneys-General of Australia resolved in 1991 to work towards uniform succession laws in Australia. In 1992 the Queensland Law Reform Commission was entrusted with co-ordinating this uniform succession laws project. As its contribution to the project the Victorian Parliamentary Law Reform Committee in 1994 published a report about Reforming the Law of Wills. The report included a draft Wills Act. In February 1996 the Queensland Commission published a miscellaneous paper (Miscellaneous Paper 15) using the Victorian draft as a basis for discussion. The very high quality of the Australian material, together with the desire to maximise the degree of uniformity between laws on each side of the Tasman, has led the Commission to adopt in large measure the Victorian draft. Unless related commentary or origin notes state otherwise, the sections of the draft Succession (Wills) Act derive from the version available to us of the Victorian work in progress.

RECOMMENDATION

17 The Commission recommends that Parliament enact the Succession (Wills) Act set out in this report.

NZLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.nzlii.org/nz/other/nzlc/report/R41/R41-INTRODUC.html