Wills Bill; First Reading

Dr Pita Sharples, Co-leader, Maori Party

Tuesday 10 October 2006; 4.10pm

Thank you Madam Speaker

One of the most memorable moments in the last few months was the formal Raising Up ceremony for Te Arikinui Tuheitia Paki.

Cloaked in the kiwi-feathered korowai of the second Maori King, Tawhiao, the new King was tapped on his head with a Bible by a descendant of Wiremu Tamihana, the first Kingmaker. The same Bible that had been used to crown the six previous Maori monarchs since the first coronation in 1858.

Moments before his ascension, senior Tainui kaumatua Tui Adams turned to the people and asked, whether Tuheitia should be King. He Kingi?: "Ae," they replied . He Kingi?: "Ae," they repeated. “He Kingi?: "Ae,". And so it was to be.

And with that, the will of the people, the declaration confirming the transfer of political leadership, was complete. It was a formalized and highly public ritual which enabled effect to be given to the intention of the willmaker, the late Queen, Te Atairangaikaahu, in a language which is plain, and which simplifies the process. It provides an excellent precedent in which to understand the reform of the Wills Act 1837.

According to the Law Commission’s 1997 report, the two key principles governing the Law of Wills are that

- a willmaker’s intentions should be upheld, and also

- that great care should be taken in determining whether what is claimed to be an expression of the willmaker’s wishes is genuinely so.

The process of the ‘performed will’ or ‘ohaki’ as I have outlined above, is clearly relevant in understanding how tangata whenua view the execution of wills.

Whilst the Wills Act 1837 from the United Kingdom remains the foundation of New Zealand’s law of wills, for Maori, the ohaki, or dying declaration of the willmaker, has established a robust model which could assist New Zealand law-making.

It is a tradition which has been carefully passed down through generations. For example, in the days leading up to his death in 1894, Tawhiao, the second Maori King, announced his successor with these words:

“Papa te whaitiri, ka puta Uenuku, ka puta Matariki,

Ko Mahuta te kingi".

The thunder crashes, Uenuku (the rainbow god) appears, the constellation of Matariki heralding the start of the new year is present; and in its midst, we welcome Mahuta the new King.

Tawhiao’s dying declaration performed the function of a written will. His intentions are manifest in a public performance, in which there are sufficient witnesses to both confirm the event; as well as gain tribal support.

It was easily understood, the dying King’s intentions were transparent, and the record shows it to be highly successful, despite the absence of lawyers or the Public Trust Office.

In his 1960 text, ‘Maori land laws’, Smith explains that the strong Maori tradition of ohaki would be acted on without question, by the relatives after death.

In 1895, the Maori Appellate Court recognized the custom of ohaki in respect of Maori customary land.

And so the Native Land Laws Act Amendment Act of that same year, 1895, was passed to abrogate by statute, what had been passed in law.

Madam Speaker, I have taken the time to share our customs of ohaki with this House, because in many ways, I think that tangata whenua had a model to authorize the genuine expression of the willmakers’ testamentary intentions, which could well have been useful in this Wills Bill.

The customary practice of ohaki, of providing for a bequest, escaped the rigidity and turgid legalese of the existing laws of wills derived from the 1837 Imperial Act. It was acknowledged and recognized by the people as having great meaning in informing Maori decisions about succession to ancestral property.

It was a custom which has carried out over the generations, over the centuries, to still hold value.

Indeed, in 1913, Frank Acheson, Judge of the Whanganui and later the Tai Tokerau Divisions of the Native Land Court, analysed in detail Maori law including that relating to wills. His work has been described as being marked by “a detailed knowledge of Native Land Court practice and by a sophisticated understanding of jurisprudence and international law”.

And, importantly, for modern day Parliament, almost a century later, the process of ohaki still has currency amongst tangata whenua. Members of the House may recall the acknowledgment given to Sir Graham Lattimer by the late Dame Whina Cooper not long before her death in 1995.

In her last days, she recognised Sir Graham as the person to whom she bequeathed the responsibility to continue the work that she had begun. Sir Graham took this ohaki and honoured it in a way that was befitting of the person from whom he received this bequest.

The Maori Party believes the existence of the formalized and mostly oral tradition of ohaki has great interest alongside the Bill currently before the House to make the law clearer and more accessible.

It makes one wonder at the wisdom of the law-making process - that a perfectly appropriate procedure for bequeaths, is accepted into law, yet rejected a few months later, and to this day, still has meaning and relevance for a significant group within our population.

I want to just contrast our customary processes of ohaki to that of the New Zealand Defence Force and the provision for informal will-making that presently exists in the Armed Forces. The Wills Bill restates the existing law that allows soldiers and sailors to make informal wills in plain language.

There are currently provisions for what is described as a ‘privileged person’ within the Armed Forces, sea-farers at sea, and prisoners of war for informal will-making. In the circumstances of dangerous active service, these persons of privilege are able to make, to amend, or revoke a will urgently, without satisfying the usual formalities.

The question the Maori Party inevitably asks, is how do tangata whenua achieve the status of a privileged person, in order to have our processes recognised, as are these personnel?

Finally, I refer to the disposal of Maori land under a will. Te Ture Whenua Maori Act 1993 provides a further and quite broad exception to the principle that testators should be free to dispose of their interests as they see fit. Succession to Maori land is dealt with under section 108 of that Act.

Maori land interests or Maori Incorporation shares can only be left to : children or descendants; brothers and sisters; anyone else entitled to receive interests by whakapapa or related to the testator by blood who is a member of the hapu associated with the land; other owners in the land who are members of the hapu associated with the land; whangai of the testator or trustees of the above.

If Maori land is willed to someone who does not qualify, that part of the Will is invalid. The Court will then determine who should succeed to the land on the basis of law.

I want to conclude with one case, which puts these principles into practice. The case of Tukua and Maketu C2B Block heard in Mäori Land Court and Appellate Court in March 2000, tells the case of a declaration from George Tukua, in a will made in 1993, to leave Maketu C2B block to his whangai son from defacto relationship, Te Kahuhui, in, I quote, " recognition of his love and support for me." End quote.

There was no question that the will was subject to Te Ture Whenua Maori Act. Section 108 of that Act limits the persons to whom Mäori freehold land may be left by will.

The Court was not satisfied that Te Kahuhui possessed a blood or whakapapa relationship with the deceased. They did however, consider his eligibility to the bequest as a whangai, which Section three defines as a person adopted in accordance with tikanga Maori.

The Court concluded that although custom generally favours a kin-based whangai relationship, in this specific case the relationship was compounded by another customary practice - the practice of ohaki or bequest.

Furthermore, there was evidence of a long and close relationship between the deceased and Te Kahuhui which was the key factor in this case. The Court upheld the bequest.

Madam Speaker, the issues associated with land, with succession, with bequests, with death are of huge importance to our whanau.

We will support the Bill to select committee, supporting the progress it has made in eliminating the anomalies and anachronisms of the existing laws on wills.

We are also pleased that in expressing the law in language that is more contemporary and plain, it should, inevitably, assist whanau, hapu and iwi in gaining access to due justice.

However, we hope that during the select committee stage, the important issues of whakapapa right to succession; of ohaki; of the status of whangai; of informal will making are given due consideration.

ends

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