A woman left her husband all of her interests in Māori freehold land in her Will.  When she died, her family were upset to find out that their father could not receive those full interests legally, as he was not part of the preferred class of people who could receive Māori land interests.

When the children applied for a succession order the Court read the clause in the Will to provide whatever the spouse could receive, which was a right to receive income and live in any property on the land, but this caused a lot of stress for the family having to follow the Court’s processes.

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

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

Who can receive Māori land in a Will?

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

  • children
  • any other persons who would be entitled to succeed to the interest if the Will-maker died without 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 hapu associated with the land:
  • trustees of persons referred above.

This is known as the ‘preferred class’.

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

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 or partner. Before these legislative changes, spouses or partners of the Will-maker could receive a life interest in the land from their spouse or partner.

What can a spouse or partner receive in a Will?

Spouses or partners are entitled to receive:

1.     The right to occupy the principal family home if it is on the land;

2.     The right to receive any income or discretionary grants from the interest.

These rights may be gifted for either a specified period of time or for 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.

What if you already granted a life interest in your Will?

The Court will interpret Wills that purport 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.

It is important to be aware that ownership of the interest will be immediately transferred to the ultimate entitled beneficiaries under the Will (for example, the children), however their title is subject to the spouse/partner’s rights. After these rights have been extinguished then the ultimate entitled beneficiary receives the ability to occupy or receive any income or discretionary grants.

It is important  that if you have Māori land interests and are drafting your Will, that you have the correct information about the practical impacts of the Act as a guiding framework for Will-making. This will ensure that the Will-maker and their whānau don’t get a nasty shock later down the line and have to go to the stress and cost of making additional applications to the Court.

 

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 an answer your questions and put you on the right track.

Claire Tyler and Charlotte Cameron