An owner of Māori land left his Māori land interests to his ‘children’ in his Will.  He had a whāngai child who had always lived with him and his wife.

The Will was not specific about whether when he said ‘children’ he intended to gift the land to that child as well.

Ultimately, the Executor of the estate, with the support of the wider whanau, spent a lot of time and stress applying to the Māori Land Court to have the child declared a whangai, to then inherit a share of the land.  This time and stress could have been prevented if the Will-maker was more specific in his Will, to include his whangai child.

There were significant changes made to the Te Ture Whenua Māori Act in 2021 which purported to streamline process to better support Māori in connecting with and making decision about their whenua. One of the most significant changes was the provisions relating to the succession entitlements of whāngai.

The Act has very strict guidelines in relation to how a person can dispose of their beneficial interest in Māori freehold land in a Will. Generally, a Will-maker can leave their beneficial interests to:

  • children and remoter issue of the Testator:
  • any other persons who would be entitled to succeed to the interest if the Testator died intestate:
  • any other persons who are related by blood to the Testator and are members of the hapu associated with the land:
  • other owners of the land who are members of the hapu associated with the land:
  • Trustees of persons referred above.

In Māori custom it is common for children to be raised by their whānau or extended family instead of their birth parents. Often this is an informal process which is arranged between the birth parents and matua whāngai (the people raising the child). 

In the Te Ture Whenua Māori Act whāngai can be considered children for succession purposes. However the Court has discretion to determine whether a child is whāngai of certain parents to ensure that succession orders are in accordance with the tikanga of that hapū and iwi.

The Court has recognised that there are a number of different types of whāngai relationships, however not all of them will be considered whāngai for the purposes of succession.

Some that the Māori Land Court have acknowledged include:

  1. Tamaiti awhi adoption where there is a close geneological connection between the adoptive parent and the child.
  2. Rāwaho whāngai where the child is brought into the whānau and hapū as a result of marriage and so they do not have whakapapa to the land.
  3. Tamaiti atawhai which has been analogised as closer to fostering a child, where the obligations are to tiaki (look after) and taurima (to treat with care).

The Māori Land Court and Māori Appellate Court have provided some general factors which may indicate whether a child will be considered whāngai.

The Māori Land Court has concluded that generally custom would favour whāngai as being from a kin group, however there are circumstances in which a person who does not have whakapapa to the land can be recognised as whāngai.

To the extent that a rāwaho whāngai could succeed will depend on a number of factors, including:

  • the level of integration with the tangata whanau,
  • the likelihood of that relationship continuing,
  • and whether there has been an ohaki.

However the Appellate Court has emphasised that the tikanga of the iwi or the hapū associated with the land, in terms of whether it would permit a whāngai with or without a blood relationship to their matua whāngai, will be the most important factor for determining succession.

How should this be referred to in the Will?

If an individual would like to gift their interests to a purported whāngai then there are certain precautions that should be taken.

  1. The child should be referred to in the Will as “my whāngai tamariki” or my “whangai child”, rather than my child, stepchild, foster child, or any other identification.
  2. The Will should also identify the relationship between the Will-maker, the whāngai, and the whāngai’s natural parent.
  3. For the purposes of succession, it will be important to explain why the gifting of this land to the whāngai tamariki will be in accordance with the tikanga of the hapū and iwi.
  4. It may also be useful to include in the Will the Will-maker’s reason for leaving a land interest to whāngai, particularly in cases where a whāngai is preferred over a natural child.

If you are trying to gift land to a whangai child in your Will, you should ensure you take legal advice to make sure your Will correctly summarises your wishes, and clearly defines the relationships with those named in it.

 

Claire Tyler and Charlotte Cameron

Maori land lawyer and Law Clerk