Wills and estates involving Māori land

Introduction

Te Ture Whenua Māori Act (“the Act”) places restrictions on who Māori land may be left to by Will and who is entitled to succeed to Māori land interests when a person dies intestate (without a Will).  In either case, in order to succeed to Māori land an application must be made to the Māori Land Court.

Who can you leave your Māori Land to in your Will?

An owner of Māori land may leave his or her interests in Māori land by Will to any of the following:

• Children and remoter issue;
• Any other persons who would be entitled to succeed if the person died intestate (as is explained below);
• Any other persons who are related by blood and are members of a hapū associated with the land;
• Other owners of the land who are members of a hapū associated with the land;
• Whāngai of the deceased; and
• Trustees of the persons referred to in the five points above.

A deceased owner may also leave a life interest in Māori land to their spouse, civil union partner or de facto partner.  This life interest exists until that person dies, gives up the interest in writing, or enters into another marriage, civil union or de facto relationship.  Once the life interest has expired the land reverts to the beneficiaries under the Will so long as they fit into one of the categories in the six points above.

Any provision in a Will that purports to leave Māori land to someone outside of the above categories or to a surviving spouse, civil union partner or de facto partner absolutely, will be treated as though it is null and void and of no effect, and the Court will deal with that interest as though the person died intestate.

Intestate succession

When a Māori land owner dies intestate there is a priority order for succession to the Māori land interests:

• Children of the deceased living at his or her death (or the children of any child of the deceased who died before the deceased) are entitled to equal shares;
• Where the deceased leaves no children then the deceased’s brothers and sisters are entitled to equal shares.  If they are deceased then the interests pass to their children;
• Where the deceased has no children or brothers and sisters then the persons entitled are those most closely related to the deceased from the side of the whānau from which the land derives from, who have children living at the date of death of the deceased; and
• When no person falls into the above categories, the Court can determine who is entitled based on tikanga Māori.

First and foremost however, when a Māori land owner dies intestate, a surviving spouse or civil union partner is entitled to a life interest , unless that person gives up the interest in writing, or enters into another marriage, civil union or de facto relationship.

An interesting distinction to note is that, while a Māori land owner can leave a de facto partner a life interest in their Will, there is no provision for a de facto partner to take a life interest on intestacy.

The succession process

The process of succeeding to Māori land begins with an application to the Māori Land Court.  The application should include the following information:

• The deceased’s whakapapa;
• The names, contact details and birth certificates  of any children (including any whāngai);
• The names and contact details of any surviving spouse/partner;
• A list of Māori land that the whānau know the deceased owned (the Māori Land Court will do further research once the application is filed to ensure that all land owned by the deceased is included in the succession orders);
• A copy of the Will and probate documents (if applicable); and
• The death certificate.

Template succession application forms are available on the Māori Land Court website (http://www.justice.govt.nz/courts/maori-land-court) or at any of the Māori Land Court offices.

Once the Māori Land Court has all of the necessary information, the matter will be set down for hearing.  At the hearing the Judge will hear from the applicant and any other interested parties.  The Judge will then make a determination as to who is entitled to succeed to the Māori land interests of the deceased and make orders vesting the interests in those entitled. 

Conclusion

To avoid any further distress for whānau following the passing of a loved one, owners of Māori land should ensure that they have an up to date Will that deals with their Māori land in accordance with the Act.  We also suggest that Māori land owners talk to their whānau about what they want to happen with their Māori land so that there are no surprises when the time comes.  Our Team can assist with the drafting of your Will, the preparation of the succession application and, if required, appear on your behalf at the Māori Land Court hearing. 

If you would like further information please contact Kylee Katipo on 07 958 7424.