Be careful when seeking to gift Māori land in Wills…

Succession to Māori freehold land is a complex area.  In a recent example, a gift in a Will purporting to gift the deceased’s Māori freehold land to their spouse failed as they were not within the same hapu as the deceased.

It is important to remember that only limited people can receive an interest in Māori land passed onto them by Will.

Individuals who own shares in Māori freehold land have to ensure, in their Will, that the persons who are receiving the ownership of their shares belong to at least one of the classes listed in the Te Ture Whenua Māori Act. The classes of eligible beneficiaries are:

•          Children and remoter issue (any further descendants) of the testator;
•          Persons able to otherwise succeed to the interest on intestacy; e.g. brothers and sisters, persons                        nearest in the chain of title to the deceased;
•          Any other persons related by blood to the testator;
•          Members of the hapu associated with the land in question, including other owners of the land; or
•          Trustees of any of the abovementioned persons

Whangai (or adopted children) may also be able to succeed to Māori land, depending on what the tikanga of the relevant iwi or hapu dictates. This will involve an assessment of whether there is a relationship of descent between the adopted child and the child’s new parents after the child becomes a whangai.

What can a spouse or partner receive?

If the spouse or partner falls into the above classes, they are able to succeed to the ownership interest of the Māori land.  It is unlikely in most cases that the spouse will fit into many of these categories.  If they do not fall within those classes, they are only entitled to a life interest in the land.

In a 2016 case, the testator left a Will leaving his entire estate to his wife who did not come under the class described above of people who can succeed to Māori land. The Court stated that this provision must fail, as any provision in a Will which leaves a beneficial interest to a person who does not fall under the prescribed classes of eligible beneficiaries will be void and of no effect. The interest will instead pass to those entitled under intestacy.

However, the Court in that case still granted the wife an interest for life, or until she remarried or entered into a civil union or de facto relationship.  Under the Act, spouses and partners can receive the right under the Will to occupy the principal family home if it is on the land, as well as the right to receive income or discretionary grants from the land interest.

These rights can be gifted for life (a life interest) or for a specified period of time. The right will end if any specified period of time ends, the spouse or the partner dies, or the spouse or the partner renounces their right in writing.

These rights cannot be further disposed of or transferred by the spouse or partner, and they do not give the spouse or partner any ownership interest in the land, but the beneficial owner’s interest will be subject to the rights of the spouse or partner.

To obtain these rights, an application will need to be made to the Māori Land Court which will make a legal determination on the succession.  It is important to note all beneficiaries need to be notified of this application, so there is a chance the application could be challenged, for example if the children do not agree to the life interest.

It is important for those who have Māori land interests to ensure the beneficiaries of those interests are eligible to receive the gift they are proposing under their Wills, to avoid the relevant provision of the Will being declared void and of no effect, and the stress and cost for family members who are left to deal with the outcome of such errors.

Claire Tyler and Hanifa Kodirova