Ngā take PūteaWhere there’s a will, there’s a way

Apr 2, 2012

Nā Diana Clement

The business of having a will drawn up may seem a morbid affair, but it is especially important for Māori, particularly those with interests in Māori land.

No-one likes to think about dying or falling seriously ill. Yet these unthinkable events can happen in an instant.

Do you know who will look after your tamariki or your Māori land if you pass away? What happens if you suddenly fall ill or are unable to make decisions about your health and welfare?

Having an up-to-date will and enduring powers of attorney (EPA) is more important for Māori than it is for many other people. This is especially so if you have interests in Māori land, which can be distributed across your whānau, or placed in a trust to be held for all your descendants.

A will outlines issues such as:
• who inherits your assets including Māori land and/or incorporation shares
• whether you’ll be buried in the whānau urupā or elsewhere
• whether your body parts can be donated and
• the kaitiakitanga of your tamariki.

Without a will you can’t guarantee your wishes will be followed, or even known, by your whānau. If you don’t have a will or your will is disputed, the Māori Land Court will step in. The Court’s National Operations Manager, Steve Gunson, says the Court can choose to divide the land or shares equally among your tamariki and/or your mokopuna.

The ownership of Māori land, whether direct, through shares or through an incorporation, adds a level of complexity to wills. This is especially so when matters involve spouses, occupation orders, or whāngai children of the deceased adopted in accordance with Māori customary practice.

Under Te Ture Whenua Māori Act 1993, land and shares must be passed down to the ‘preferred class’, which in the first instance is tamariki, followed by mokopuna, including whāngai children.

A law partner at Wellington-based Rainey Collins, Peter Johnston, says it’s a good idea to list whānau who might inherit in the will, and outline the relationship to avoid later challenges.

If under a will, the land or shares are left to someone who is not in the preferred class, then the bequest will be void and of no effect.

One common issue is what to do in the case of a non-Māori spouse. Mr Johnston says the law allows for a life interest to pass to the Pākehā spouse unless they enter into another relationship, at which time the whānau inherit.

Steve Gunson from the Māori Land Court says this distinction is important, as a partner or a spouse is not entitled to receive a life interest if those interests are left to whānau in the will.

As well as a will, all Māori should have EPAs. They let you select someone to whom you give power of attorney to manage your property including Māori land and/or your personal care if you can’t. Your attorney can be a member or members of your whānau or community, friends, or a professional such as your solicitor.

Without an EPA the Family Court will appoint someone to make decisions on your behalf; or in respect of your Māori land interests, the Māori Land Court will place your interests into a Kaitiaki trust for your benefit.

No-one wants whānau fighting at their hospital bedside or tangi. “There are some really important issues at stake in relation to Māori land, and there are traps for the unwary,” Peter Johnston says.

A final important point: wills should always be updated when you enter a new relationship, have more tamariki, or other aspects of your financial and personal life change – such as inheriting Māori land or shares yourself.

*The Ngāi Tahu Māori Law Centre offers a free legal service relating to Māori land. Phone 0800 Maorilaw (0800 626 745) or email [email protected].

*The Māori Land Court has an information office in Auckland, and can be contacted on 09 279 5850 or email: [email protected].

Diana Clement is a freelance journalist who writes in personal finance and property on investing. She has worked in the UK and New Zealand, writing for the top personal finance publications for over 20 years. In 2006 and 2007 she was the overall winner of the New Zealand Property Media Awards.