Family Protection Act Claims to Māori Freehold Land

One of the main ways to challenge a deceased family member’s estate is under the Family Protection Act ("FPA").  This allows for spouses, civil union partners, de facto partners, children, grandchildren and, in some circumstances, step-children and parents, to make a claim if they believe the deceased has breached a moral duty that they had to the claimant. 

What happens when the deceased had an interest in Māori freehold land?  Can that form part of the estate against which a claim can be made?

The Te Ture Whenua Māori Act provides that no order can be made which has the effect of alienating any interest the deceased has in Māori freehold land to any person other than a child or grandchild of the deceased. 

Accordingly the Family and High Courts (which have jurisdiction over such claims) cannot make an order under the FPA which would result in the alienation of Māori freehold land.

However, the High Court does retain a discretion to make an order conferring a right for a successful applicant to reside in any dwelling, or to receive income from any beneficial interest in Māori freehold land. 

This means that a spouse or partner could be allowed to live in a house on Māori freehold land, or to benefit from income derived from the land, despite being unable to obtain any further interest in that land.

It is important to note that this is just one of a number of issues that can arise in respect of Māori freehold land. It is therefore important when dealing with such issues to seek professional advice.