Evolving practice

Thursday, 01 April 2010
Indigenous estate succession planning in Aotearoa, New Zealand.

As European colonisers travelled the salt waters and began to make their homes in the old lands of indigenous peoples, an interesting overlay of laws and lines on land occurred. The indigenous land that remained with the Indigenous peoples was often ring-fenced as reserves with all rights to own, manage and succeed to the land stipulated in new colonial legislation. These laws are often distinctly different to the laws that apply to general private land. This article takes the opportunity to case study one instance of this process, focusing on the current rules for succeeding to Maori freehold land in Aotearoa, New Zealand.

Maori land

All land in Aotearoa was once Maori customary land (land communally held by Maori). With the British acquiring sovereignty of the country in 1840, this land began to be recategorised into Maori freehold land (land that the Native Land Court had issued individualised titles for), general land and Crown land. Today, about 6 per cent of the landmass is classified as Maori freehold land. As a broad generalisation, it is often multiply owned (frequently by hundreds of people), sited in rural but non-arable lands, and not inhabited or utilised. New law, since 1993 – Te Ture Whenua Maori Act/Maori Land Act 1993 (the Act) – has provided a framework to revolutionise owning and managing Maori land. Its premise is that Maori freehold land ought to be retained by its Maori owners, and that the Maori Land Court should encourage the utilisation of it for the benefit of its owners. With the future looking more promising for Maori freehold land, more owners are seeking legal advice, including in regard to succession. Strict succession rules have developed that essentially aspire to keep the ownership of Maori freehold land with blood relatives.

Limited testamentary freedom

An owner of an interest in Maori freehold land has limited testamentary freedom. Those who can be devised an absolute interest must fall within one of the categories specified in the Act (s 108(2)). The Act obviously recognises children and remoter issue of the testator as permitted persons, and those hapu (sub-tribe) members associated with the land through being related by blood. However, there is some scope to devise to a non-blood relative: other owners of the land who are members of the hapu associated with the land, and a whangai child (persons adopted in accordance with Maori values and customs). That is all. There is no freedom to leave absolute interests in Maori freehold land to a neighbour, a charity, a friend, or even a spouse. But the testator may choose to devise a life interest to his or her spouse, civil union partner or de facto partner (s 108(4)).

Issues arise, even with what may seem the most obvious category: children and grandchildren. For instance, what of the adopted child? In Aotearoa, the Adoption Act 1955 creates a legal fiction in that once a child has been adopted, the child is deemed to have been born to the adoptive parents (16(2)). This means that the adopted child can receive an interest in land from his or her adoptive parents, but not birth parents (where the blood link is). Another controversial category is the whangai one. The traditional practice of whangai differs from tribe to tribe. For some tribes the blood relationship is paramount and thus the common whangai practice would be for grandparents to whangai a grandchild. But, for other tribes it is not so limited. In hard cases the Maori Land Court has to decide whether a person was a whangai of the testator. For instance, in one case it accepted that a testator could devise his interest in Maori freehold land to his ‘step-child’ (as worded in his will), aged in his twenties, who had first come to live with the testator at age seven years, under the guise of being a whangai. (See Re Tukua an Maketu C2B Block 10/3/00, Judge Carter, MLC Waikato Maniapoto 60190; A19990006380).

Succession on intestacy

The intestacy rules follow a much stricter blood line (s 109(1)). Originating back to a 1867 Native Land Court decision, the precedent involves a three tiered rule. Children have first right to succeed equally. If there are no children, then the interest will go to the deceased’s brothers and sisters. If there are no siblings, the interest will go to the children nearest in the chain of title to the deceased. A surviving spouse or civil union partner is entitled as of right to a life interest in the Maori land beneficially owned by the estate, unless at the date of death there is a separation order in existence.

Until recently, most Maori passed away without a written will, due to a Maori custom that held that the topic of transferring property should be discussed when the person was on his or her deathbed. Maori believed that to express inheritance rights any sooner would tempt fate; death would ensue. The Court determined in 1867 that the best way to reconcile British intestacy rules (eldest son inherits) with Maori customary inheritance rules was for children to succeed equally. It is debatable whether this was the best precedent to develop, especially because it has led to extreme fragmentation of Maori land interests, which explains partly why so little Maori land has been economically developed. As part of the revamp of Maori land law, the Maori Land Act 1993 attempts to provide a solution via the development of whanau (family) trusts. Once one of these share management type trusts has been established, the land interests of a living or deceased owner are vested in the trustees, usually family members, and no further succession and fragmentation occurs (s 214).

The permissible categories for succeeding via a will and intestacy differ slightly. Little scope is available for a non-blood relative to succeed to a deceased relative’s Maori land interests if the deceased left no will. Importantly, the intestacy rules make no specific provision for whangai children (although the Court does retain some discretion on this point, see s 115). Also, the surviving de facto partner is not entitled to a life interest in Maori freehold land. If de facto partners who own interests in Maori land wish to make provision for one another, they must express this as a life interest in a will. On intestacy, their surviving partners will lose out.

Claims to Maori freehold land

Only a child or grandchild of the deceased can succeed in a family protection claim against Maori land (s 106(2)). The courts have held that the definition of ‘child’ in the Family Protection Act 1955 cannot be extended to include the whangai child. A person who falls within the permissible categories of people that a testator of Maori land can leave an interest to, can make a claim under the Law Reform (Testamentary Promises) Act 1949 (s 106(1)).

A surviving or separating partner (joined by marriage, civil union or de facto circumstances) has no ability to share equally in a partner’s Maori land interests. While the Property (Relationships) Act 1976 (P(R)A) presupposes that all property is relationship property and it is to be shared equally, it specifically excludes Maori land from that division. The (P(R)A) reads that ‘Nothing in this Act shall apply in respect of any Maori land’ (s 6). The heartache here is where the family home has been built on Maori land. Because of the common law principle that holds that ‘whatever is affixed to the soil, belongs to the soil’, the family home is captured as Maori land. This means that the surviving or separating spouse or partner, who has no interest in the Maori land where their home is built, can at most only receive a life interest in the property. A person with a life interest in Maori land is not capable of alienating that property without the consent of all persons entitled in remainder (s 150D).

Conclusion

As in many British colonised countries, specific statutory rules dictate indigenous estate succession planning. In Aotearoa, New Zealand the emphasis is on retaining Maori land in Maori hands. Because of this, the law can seem very harsh, especially for those close to the family, such as legally adopted out children, customarily adopted in children, and spouse and partners. In order to lessen the impact of these rules on families, it is crucial that lawyers are well versed in this law.

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Jacinta Ruru

Jacinta Ruru is a Senior Law Lecturer at the University of Otago.

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