Wills Bill: Second Reading

te-pati-maori

Wed May 09 2007 12:00:00 GMT+1200 (New Zealand Standard Time)

Wills Bill: Second Reading

Wednesday, 9 May 2007, 11:16 am
Speech: The Maori Party

Dr Pita R Sharples, Co-leader, Maori Party

Tuesday 8 May 2007

I was interested to hear the view of a lawyer working with Maori within my electorate of Tamaki Makaurau, just last Friday.

Andrew Lawson, who has worked at the Mangere Community Law Centre for the past ten years, was reflecting about the experiences and perspectives of Maori regarding wills.

Now it should perhaps be pointed out that the Mangere Community Law Centre has recently celebrated twenty years of service, being one of the first law centres in Aotearoa to provide services to address the unmet legal needs of its community.

And it’s a community law centre well supported by mana whenua, Tainui.

So when Andrew Lawson described the view of Maori as dismissing the need for wills because they think they are tempting fate, it made me sit up and listen. This is an organisation that knows what it is talking about.

Mr Lawson went further to explain that whilst many Maori view writing a will as bad luck, the misfortune actually occurs following a death in the whanau, if deliberations about the inheritance of assets such as taonga and shares in Maori land assets are up for debate.

And so with the words from my electorate ringing in my ears, I have taken a

Its purpose is all about modernisation and simplicity – replacing the Wills Act 1837 of the UK Parliament with an Act in plain language; updating certain aspects of existing wills law; and bringing all of the matters relating to wills together in one single statute that is written in straight-forward, modern language which is clear and accessible to all those who wish make, update or revoke their will.

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The need for a revamp of current legislation governing wills was recommended in the Law Commission’s 1997 publication Succession Law: A Succession (Wills) Act. As we understand it, their interest was a practical one – because the legislation dating back to 1837 was archaic, so too were the words and provisions.

Thinking further about this suggestion that Maori are not interested in writing wills in the first place, I wonder then, if the process of simplifying and clarifying the legislation may also have an educative function about the value of setting out directions in legal form for the distribution of one’s property after death.

Some of the key areas one would think should be included are answers to questions such as:

o Can I leave my whangai some of my Maori land interests?

o How appropriate is it to defer property disposal provisions to the Maori Land Court to determine matters of succession?

o How are Acts such as the Family Protection Act 1955, the Matrimonial Property Act 1976 and the Administration Act 1969 able to comply with Maori cultural processes and laws?

o How are the succession rights of individuals, whanau or hapu whose rights have been previously extinguished, able to be considered?

o Can I ensure my wishes will stand after I pass, and should I be able to make them stand?

o Is it time to consider a separate Maori law of succession?

The Maori Party believes that the creation of a will can play a role in maintaining whakapapa links through the succession of resources and taonga to whanau, hapu. As such, we are happy to support any amendments which assist this process.

We are also of the opinion that the procedure of establishing wills is not just one that applies to contemporary times.

Indeed, Frank Acheson’s Jacob Joseph Scholarship Essay of 1913, describes the processes of ohaaki – verbal wills, as a routine part of Maori custom.

And in 1914, a former student of the excellent Te Aute College, Hoani Meihana Te Rama Apakura, was employed as a licensed interpreter and a clerk of the Native Land Court. Through his work he would be called upon to witness wills and translate official documents from Maori into English.

So clearly, as tangata whenua we have had our own distinct processes of establishing wills – which may well be useful in any future wills education promotion.

The key issue for the Maori Party in looking at the creation of a plain modern accessible language, is in ensuring that the reforms that take place are explained in such a way to make it perfectly clear how the law works in relation to key elements of customary law.

In 1996, the Law Commission requested a working paper be written by Professor Pat Hohepa and Dr David Williams which could help to describe some of the intricacies of Maori law.

The paper, entitledThe Taking into Account of Te Ao Maori in Relation to Reform of the Law of Succession, noted that there had been legal recognition of Maori customary law in the past in the case of marriage or adoptions, but such provisions were removed at the convenience of legislators who were not of Maori descent.

A key example of the impacts of this are related to the case of whangai.

Under Maori customary law, whangai are similar to legally adopted children in accordance with tikanga Maori. And yet the Adoption Act 1955 does not apply to whangai.

In a precedent established in November 2002, in Keelan v Peach v Anor, the Court of Appeal upheld a High Court decision which stated that whangai cannot claim under the Family Protection Act.

As a consequence of this case, if Maori want to make it clear that a whangai child is to be included in a will, they have to be named or referred to by the term whangai, to be a beneficiary.

But we have been pleased that, with the passage of the Te Ture Whenua Maori Act in 1 July 1993, there are now clear legal protections with regards to succession to Maori land.

It used to be that a person could leave interests to whoever they wished, or be imposed upon to do so as often happened, but now an owner of Maori land interests can only leave those interests as set out in the Act.

In summary, Maori land interests or Maori Incorporation shares can now only be left to:

o children or descendants;

o brothers and sisters;

o anyone else entitled to receive interests by whakapapa;

o anyone else related to the testator by blood who is a member of the hapu associated with the land;

o other owners in the land who are members of the hapu associated with the land;

o Whangai of the testator;

o trustees of any of the above;

o the spouse for life or for shorter period.

If Maori land is willed to someone who does not qualify, that part of the Will is invalid. The idea is to continue the collective nature of whakapapa and the maintenance of land within the whenua tipuna bloodlines. Freedom of choice should not extend to being able to alienate ones children, grand-children and great-children from their whenua

Finally, one of the issues referred to in the paper by Professor Hohepa and Dr Williams was the absolute importance of discussing the context and criteria encompassed in wills with Tangata whenua.

Their discussion paper was always only intended as a basis for going forward to consult with iwi and pan-Maori organisations. Their recommendation was that the consultation process would be crucial in providing answers to questions of the future direction of the law of succession as it affects Maori. It would appear from such a recommendation that what the authors suggested was a wide scale hui process.

The Maori Party is more than happy to offer suggestions and support for such nationwide consultation.

It may well be timely to revisit a concept I first raised in the first reading speech, that of ohaaki. Ohaaki – a formal speech given when dying, takes the form of an announcement of one’s wishes regarding personal property disposal to the assembled relatives.

Ohaaki – the legal oral declaration of intention - was at first recognised as legally binding, but powers were removed by legislation last century. The Maori Party believes it is an important succession concept and we would welcome further debate about its application in a modern day context.

Mr Speaker, we in the Maori Party support the Wills Bill at its second reading.

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