What happens when there is uncertainty in a Will? Maori Land Court finds in favour of grandson

A recent Māori Land Court decision considered the rules of succession when there is uncertainty in a Will. The case concerned a succession application about a house owned by the deceased which was located on a block of Māori land.

The Will of the deceased contained two clauses in relation to the house:

• Clause 3. of the Will said that the deceased’s grandson was to succeed to the “...transportable Bach together with the section on which the said Bach is situated permanently.”
• Clause 4. of the Will gave the deceased’s son “...all interests in the dwelling to be situated on the Māori freehold land...Lot 1.”

At the time of the deceased’s death, she only owned one house, despite Clauses 3. and 4. of the Will each referring respectively to a “Bach” and “dwelling”.

During the woman’s lifetime it had been proposed that the block of land be divided into two lots. The house sat on the proposed “Lot 2” but was intended to be shifted onto “Lot 1” once the division was complete.

However, this division was never completed, which meant that Lot 1, referred to in Clause 4. of the Will did not exist, and the house was not moved.

The grandson argued that the house was his under clause 3. of the Will. The house was a “kitset” home and therefore able to be moved easily. The grandson also provided evidence from other whānau members which indicated that it was the deceased’s intention to leave the house to him.

The deceased’s son disputed this interpretation of the Will, and argued that the house should pass to him as directed by Clause 4. He argued that the house could not be the “transportable Bach” referred to by Clause 3, given it was not a holiday home but a permanent home. Therefore, he argued, Clause 3. should fail due to lack of certainty regarding what the “transportable Bach” was.

Further, he argued it was the house which was to be moved onto the proposed Lot 1 under the division plan, and that the “transportable Bach” never came into existence. As such, the house should be left to him following Clause 4.

The Court considered both arguments, and emphasised that it is important to ascertain, and give effect to, the intentions of the deceased.

The Court accepted that there was an arrangement for the land to be divided, and for a dwelling to be moved, but noted that this division was never completed.

Therefore, there was no Lot 1 as referred to in Clause 4 of the Will. Accordingly, there was also no dwelling on Lot 1 which could be passed on. Further, the Court found that it was unclear whether the “dwelling” to be situated on the proposed Lot 1 was in fact the house, or a new dwelling.

The evidence for the grandson from a number of whānaunga (relatives) clearly indicated that it was the deceased’s intention to leave the house to the grandson.

Clause 3. was held to be sufficiently certain in terms of the house and the land, and that the Will clearly showed the deceased’s intentions to leave the grandson the house. 

The Court determined that ownership of the house would therefore pass to the grandson.

It is important to ensure that your Will is sufficiently clear to avoid disputes between whānau members. Special care should be taken when dealing with assets which you are proposing to make relevant changes to in the future.

Ensure you seek legal advice from an expert in the area when drafting your Will, or dealing with a succession dispute.

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