Gifting Māori Land in a Will – don’t get caught out when trying to gift to your spouse

An owner of Maori land interests wrote their own Will, and had it witnessed.  In their Will, they left their Māori land interests to their spouse.

When they passed away, their Executor, who was also their spouse, was shocked to find out that the provision in the Will was invalid and therefore they could not inherit the land.

In 2021 there were significant changes made to the Te Ture Whenua Māori Act which were intended to streamline processes to better support Māori land owners to connect with, and make decisions about, their whenua. One of the most significant changes was around the entitlements of spouses that do not have whakapapa to the land.

The main purpose of the Act is to prevent the further alienation of Māori freehold land. Therefore, the Act has strict guidelines as to who a Will-maker can leave their beneficial interests in Māori freehold land to in their Will.

Generally, a Will-maker can leave their Māori land beneficial interests to: 

• their children
• any other persons who would be entitled to succeed to the interest if the Will-maker died without having made a Will
• any other persons who are related by blood to the Will-maker and are members of the hapu associated with the land
• other owners of the land who are members of the hapū associated with the land
• trustees of persons referred to above.

Any provision in a Will that purports to leave a beneficial interest in Māori freehold land to any person other than these classes of people will be void and of no effect. In that situation, the Act’s general rules of succession will apply.

In the above case, that meant the land went to the deceased’s children, who were estranged from their father.

Unless a spouse or partner is a member of the hapū associated with the land, then a Will-maker cannot leave their beneficial interests to their spouse.

Before these law changes in 2021 , spouses or partners of the Will-maker could receive a life interest in the land. However, changes in the wording of the law limits the entitlement of a partner or spouse to being able to receive only certain rights. These rights are:

1. The right to occupy the principal family home if it is on the land; and
2. The right to receive any income or discretionary grants from the interest. This may be gifted for either a specified period of time or the life of the spouse/partner. The right will be terminated if the specified period ends, the spouse/partner dies, or the spouse/partner gives it up in writing.

Since these changes have taken place, the Court has clarified the practical effect of the law in at least one significant case.

First, the Court will interpret Wills that try to leave a life interest in any Māori freehold land as intending to leave the rights of occupation and to receive income instead. This means that the provision will not become void and subject to the succession provisions of the Act.

Second, the Court determined that the primary beneficiaries of these interests immediately gain ownership and thus are entitled to make decisions concerning the land.

Under the previous provisions orders would be made on the basis that the beneficiary who would ultimately receive the interest would do so on the expiry of the life interest. This change is of particular importance as it means that these rights of occupation etc. do not give the spouse or partner any form of ownership or control over the land.

Rather, ownership is immediately transferred to the beneficiaries, however their title is subject to these rights to occupation or receipt of interest. After these rights have been extinguished then the beneficiary receives the right to occupy or receive any income or discretionary grants.

These law changes have substantially changed the impact of the Te Ture Whenua Māori Act. It is important for those with Maori land interests to take legal advice before signing their Will to ensure that the Will-maker is clear about what they can leave to whom, and their whanau do not get a shock later down the line.

Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.