You are here:
NZLII >>
Databases >>
New Zealand Law Commission - Issues Papers >>
2021 >>
[2021] NZLCIP 46
Database Search
| Name Search
| Recent Documents
| Noteup
| LawCite
| Download
| Help
Review of succession law: rights to a person's property on death [2021] NZLCIP 46; Review of succession law: rights to a person's property on death [2021] NZLCIP 46; He arotake i te âheinga ki ngâ rawa a te tangata ka mate ana
Last Updated: 15 April 2021
jesseApter aM,
April 2021
Te Whanganui-a-Tara, Aotearoa Wellington, New Zealand
Issues Paper | He Puka Kaupapa 46
Review of Succession Law: Rights to a person’s property
on death
He arotake i te āheinga
ki ngā rawa a te tangata ka mate ana
Te Aka Matua o te Ture | Law Commission is an independent,
publicly funded, central advisory body established by statute to undertake
the
systematic review, reform and development of the law of Aotearoa New Zealand.
Its purpose is to help achieve law that is just,
principled and accessible and
that reflects the values and aspirations of the people of Aotearoa New
Zealand.
Te Aka Matua in the Commission’s Māori name refers to
the parent vine that Tāwhaki used to climb up to the heavens.
At the foot
of the ascent he and his brother, Karihi, find their grandmother, Whaitiri, who
guards the vines that form the pathway
into the sky. Karihi tries to climb the
vines first, but makes the error of climbing up the aka taepa, or hanging vine.
He is blown
violently around by the winds of heaven, and falls to his death.
Following Whaitiri’s advice Tāwhaki climbs the aka matua,
or parent
vine and reaches the heavens and receives the three baskets of knowledge.
Kia whanake ngā ture o Aotearoa mā te arotake
motuhake
Better law for Aotearoa New Zealand through independent review
The Commissioners are:
Amokura Kawharu – Tumu Whakarae | President
Helen McQueen – Tumu Whakarae Tuarua | Deputy President Donna
Buckingham – Kaikōmihana | Commissioner
Te Aka Matua o te Ture | Law Commission is located at:
Level 9, Solnet House, 70 The Terrace, Wellington 6011
Postal address: PO Box 2590, Wellington 6140, Aotearoa New Zealand Document
Exchange Number: SP 23534
Telephone: 04 473 3453 Email:
com@lawcom.govt.nz Internet:
www.lawcom.govt.nz
The Māori language version of this Issues Paper’s title was
developed for Te Aka Matua o te Ture | Law Commission by Kiwa
Hammond and
Maakere Edwards, of Aatea Solutions Limited. The title was finalised in
conjunction with the Commission’s Māori
Liaison Committee.
Kei te pātengi raraunga o Te Puna Mātauranga o
Aotearoa te whakarārangi o tēnei pukapuka. A catalogue record for
this
title is available from the National Library of New Zealand.
ISBN 978-0-9951291-0-8 (Online)
ISSN 1177-7877 (Online)
This title may be cited as NZLC IP46. This title is available on the internet
at the website of Te Aka Matua o te Ture | Law Commission:
www.lawcom.govt.nz
Copyright © 2021 Te Aka Matua o te Ture | Law
Commission.
This work is licensed under the Creative Commons Attribution 4.0
International licence. In essence, you are free to copy, distribute
and adapt
the work, as long as you attribute the work to Te Aka Matua o te Ture | Law
Commission and abide by other licence terms.
To view a copy of this licence,
visit https://creativecommons.org/licenses/by/4.0
- FOREWORD TE
AKA MATUA O TE TURE | LAW COMMISSION
Foreword
For most
of us, the way we want our property to be distributed when we die is important.
Succession of property can express aroha,
love and affection, recognise who we
consider to be family, support those who we think need to be provided for, and
provide benefits
for the public good.
An ao Māori perspective emphasises the importance of whānau and
whanaungatanga. It is underpinned by whakapapa connections
to whenua,
whānau, tūpuna and atua. It is concerned with upholding the mana of
both the deceased and the collective.
Te Aka Matua o te Ture | Law Commission is reviewing aspects of the law
governing succession. The review focuses on claims against
estates and the
distribution of intestate estates. It calls us to engage with the tikanga and
values that should underpin good succession
law.
We have benefited in this review from the Commission’s work on succession
law undertaken in the 1990s. Its recommendations
from that review were partially
implemented, including through the enactment of the Wills Act 2007. However,
statutes like the Family
Protection Act 1955, the Law Reform (Testamentary
Promises) Act 1949 and the Administration Act 1969 have continued without
reform.
Consequently, the law in this area is founded on the attitudes and
values from generations ago.
This Issues Paper asks afresh what Aotearoa New Zealand’s succession law
should be.
The review engages the guarantee of tino rangatiratanga and the Crown’s
kāwanatanga responsibilities under te Tiriti o
Waitangi | the Treaty of
Waitangi. The review raises too the centrality of tikanga as a source of law.
This Issues Paper considers
crucial questions about the facilitation of tino
rangatiratanga and the contribution of tikanga to the development of law in
relation
to succession.
We encourage all New Zealanders to have their say. The feedback from the
submissions we receive on this Issues Paper will influence
the final
recommendations we will make later this year in our final report.
Amokura Kawharu
Tumu Whakarae | President
- HAVE
YOUR SAY TE AKA MATUA O TE TURE | LAW COMMISSION
Have your say
We
want to know what you think about the issues and proposals set out in this
paper. Do you agree or disagree with the way the issues
have been articulated?
Are there additional issues you think should be considered? What do you think
about the proposals for reform?
Submissions on our Issues Paper should be received by 10 June 2021. You can
email your submission to sul@lawcom.govt.nz.
You can post your submission to Review of Succession Law Law Commission
PO Box 2590
Wellington 6140
WHAT HAPPENS TO YOUR SUBMISSION?
Te Aka
Matua o te Ture | Law Commission will use your submission to inform our review
and we may refer to your submission in our
publications. We will also keep all
submissions as part of our official records. Information supplied to the
Commission is subject
to the Official Information Act 1982.
We will publish the submissions we receive on our website once we have published
our final report. Your submission and your name
will be publicly available. We
will remove your contact details from your submission before publishing it on
the website.
If you do not want us to release identifying information or any other part of
your submission, or do not want your submission
to be referred to in our
publications, please explain in your submission which parts should be
withheld and the reasons. We will
take your views into account in
deciding:
- whether to
withhold or release any information requested under the Official Information
Act
- if and how to
make your submission publicly available on our website; and
- if and how to
refer to your submission in our publications.
Te Aka Matua o te Ture | Law Commission complies with the Privacy Act 2020,
which governs how it collects, holds, uses and discloses
personal information
you provide. You have the right to access and correct your personal
information.
- ACKNOWLEDGEMENTS TE
AKA MATUA O TE TURE | LAW COMMISSION
Acknowledgements
Te
Aka Matua o te Ture | Law Commission gratefully acknowledges the contributions
of the people and organisations that have shaped
our Issues Paper.
We acknowledge the generous contribution and expertise from our Expert Advisory
Group:
- Bill Patterson,
Patterson Hopkins
- Greg Kelly, Greg
Kelly Law
- Mānia Hope,
Barrister
- Professor Nicola
Peart, University of Otago
- Theresa
Donnelly, Perpetual Guardian
We are also grateful for the support and guidance of the Māori Liaison
Committee to Te Aka Matua o te Ture | Law Commission.
We have been further assisted by many individuals and organisations who kindly
shared their expertise and experiences with us in
the preliminary engagement
stage of this review. We thank all the practitioners who responded to our
Practitioner Survey. We
acknowledge the input we received from Auckland
Disability Law, Commission for Financial Capability, Manaakitia a Tātou
Tamariki
| Office of the Children’s Commissioner, members of the
judiciary, Ngā Pou Whakawhirinaki o Aotearoa | Citizens Advice
Bureau,
Professors Christine Stephens and Fiona Alpass of Te Kunenga Ki Pūrehuroa
| Massey University, Public Trust, Tāhū
o te Ture | Ministry of
Justice, Tatauranga Aotearoa | Stats NZ, Te Manatū Whakahiato Ora |
Ministry of Social Development,
Te Tari Taake | Inland Revenue, and Toitū
te whenua | Land Information New Zealand. We are grateful for the
contributions
of Dr Maria Hook and Jack Wass to the discussion of
cross-border issues in this Issues Paper.
We acknowledge individuals who have engaged with us to share an ao Māori
perspective on succession. We have received valuable
assistance from Te Amokura
Consultants Limited. We are grateful to those tikanga and legal experts who
attended and contributed to
the wānanga on the tikanga relevant to
succession. We acknowledge the insights provided by Te Puni Kōkiri, Te Tumu
Paeroa
| Māori Trustee, Te Puni Kōkiri, Te Kooti Whenua Māori |
the Māori Land Court, and Te Rōpū Whakamana
i te Tiriti o
Waitangi | the Waitangi Tribunal. Finally, we thank those individuals and groups
who have shared their views and experiences
with us.
We emphasise nevertheless that the views expressed in this Issues Paper are
those of Te Aka Matua o te Ture | Law Commission and
not necessarily those of
the people who have helped us.
We acknowledge with thanks the work of Te Tari Tohutohu Pāremata |
Parliamentary Counsel Office in preparing draft legislative
provisions for
inclusion in this Issues Paper.
Nō reira, ko tēnei mātou e mihi nei ki a koutou, kua whai wā
ki te āwhina i a mātou. Tēnā
koutou, tēnā koutou,
tēnā koutou katoa.
The Commissioner responsible for this project is Helen McQueen. The legal and
policy advisers who have worked on this Issues Paper
are John-Luke Day,
Tāneora Fraser and Susan Paul. The clerks who have worked on this Issues
Paper are Oliver Frederickson, Rhianna
Morar and Tom White.
Contents
Introduction
- Te
Aka Matua o te Ture | Law Commission (the Commission) is reviewing aspects of
succession law. Succession law is the system of rules
that determine who
receives people’s property when they die. This review focuses on rights to
a deceased person’s property
whether the deceased left a will or died
intestate.
- Important
questions arise. To what extent should a person be able to dispose of their
property as they choose? Should family members
have rights to protect them
against disinheritance? How should the law provide for diversity of family
arrangements and values across
Aotearoa New Zealand?
- Succession
is a significant subject for Māori. How can the law support Māori to
resolve succession matters in the way Māori
wish?
- The
purpose of this Issues Paper is to ask for your views on the issues with the
current law and what changes are needed.
- The
feedback we receive will help us decide how succession law can be better for all
New Zealanders. We plan to publish our final
report by the end of
2021.
WHY IS THE COMMISSION REVIEWING SUCCESSION LAW?
- Many
parts of Aotearoa New Zealand’s succession law have not been
comprehensively reviewed in decades. Much of the key legislation
was drafted in
the mid-20th century. Since that time, Aotearoa New Zealand has undergone
significant social change, affecting the
relationships we enter and what we
think family means. The need for law-making to properly consider the
Crown’s obligations
under te Tiriti o Waitangi | Treaty of Waitangi is
also better recognised by the Crown. The law may not have kept pace with these
changes or the reasonable expectations of New Zealanders.
- This
review of succession law follows our review of the Property (Relationships) Act
1976, which concluded in 2019. In our final report
Review of the Property
(Relationships) Act 1976
| Te Arotake i te Property (Relationships) Act 1976, we recommended that
the Act’s provisions that apply when someone in a relationship dies
should be considered in a
broader review of succession law.1 The Government accepted the
recommendation. In July 2019, the Minister Responsible for the Law Commission
included a review of succession
law in our work programme.
- Te
Aka Matua o te Ture | Law Commission Review of the Property (Relationships)
Act 1976 | Te Arotake i te Property (Relationships) Act 1976 (NZLC
R143, 2019) at R6.
TERMS OF REFERENCE
- The
terms of reference for the review of succession law were published in December
2019. They require us to consider who should be
entitled to claim property from
a deceased person’s estate, with a particular focus on the
deceased’s partner and other
members of the family.
- The
particular statutes under review are the:
(a) Property
(Relationships) Act 1976;
(b) Family Protection Act 1955;
(c) Law Reform (Testamentary Promises) Act 1949; and
(d) Administration Act 1969.
- The
terms of reference require us to consider how succession law should address
areas of particular concern to Māori. We are
not reviewing the regime for
succession to Māori land under Te Ture Whenua Maori Act 1993 but are
considering questions relating
to succession generally that may be of particular
concern to Māori. In doing so, we may comment on aspects of Te Ture Whenua
Maori Act.
THE WORK WE HAVE UNDERTAKEN
- To
identify issues and develop proposals for reform as set out in this Issues Paper
we have reviewed the relevant case law and commentary.
We have examined the law
in comparable jurisdictions, with a particular focus on Australia, Canada,
England and Wales, Scotland,
Ireland and some European civil law jurisdictions.
We have obtained data relating to will- making and court applications (to the
extent that it is available). In addition, we have met with several leading
experts, lawyers and judges to hear their preliminary
views. We have looked at
relevant demographic information about the increasing diversity of New
Zealanders and their families.
- In
April 2020, we issued a survey to lawyers who work in succession law (the
Practitioner Survey). We received 23 responses to the
Practitioner Survey,
including feedback given at meetings with the Auckland District Law Society
Trusts and Estates Committee and
the New Zealand Law Society Trusts and Estates
Committees for Canterbury-Westland and Wellington. The responses have informed
our
understanding of the issues and reform options.
- We
have drawn heavily on the Commission’s work when it reviewed succession
law in the 1990s. 2 We have
been guided too by the recommendations from the review of the Property
(Relationships) Act.3
- We
have worked to inform ourselves of the interests of Māori in this area and
appreciate from Māori the nature and cultural
dimensions of succession
within te ao Māori. We have
- Te
Aka Matua o te Ture | Law Commission Succession Law: Testamentary Claims
(NZLC PP24, 1996); and Te Aka Matua o te Ture | Law Commission Succession
Law: A Succession (Adjustment) Act (NZLC R39, 1997).
- Te
Aka Matua o te Ture | Law Commission Review of the Property (Relationships)
Act 1976 | Te Arotake i te Property (Relationships) Act 1976 (NZLC
R143, 2019).
drawn on the work the Commission undertook in the 1990s. 4 The Commission’s
Māori Liaison Committee has guided us on our approach to this work. We held
a wānanga with tikanga
and legal experts to consider the tikanga relevant
to succession. We have had preliminary meetings with representatives of several
Māori institutions5 and
held “zui” with various groups, including whānau members and
Māori Land Court staff. We have engaged Te
Amokura Consultants Ltd to
facilitate our engagement with Māori throughout the
project.
- We
met with our Expert Advisory Group to seek the Group’s feedback on our
proposed approach to the Issues Paper and took into
account the feedback we
received.
THE SUCCESSION SURVEY
- The
University of Otago, funded through the Michael and Suzanne Borrin Foundation,
has surveyed public attitudes and values towards
succession issues (the
Succession Survey). The Succession Survey involved interviews with a nationwide,
statistically representative
sample of the population, with
“booster” targets for Māori, Pacific peoples and Asian
populations. Interviewees
were asked for their views on matters such
as:
(a) the importance of testamentary freedom;
(b) the rights of family members, particularly financially independent adult
children, to challenge the deceased’s will;
(c) who should inherit in an intestacy and in what proportions; and
(d) attitudes towards relationship property rights on death.
- The
results of the Succession Survey are critical to the issues and reform proposals
we present in the Issues Paper. We refer to the
results throughout this Issues
Paper.6
TERMS USED IN THIS DOCUMENT
- Throughout
this Issues Paper, we use several abbreviated or defined
terms:
(a) PRA — Property (Relationships) Act 1976
(b) FPA — Family Protection Act 1955
(c) TPA — Law Reform (Testamentary Promises) Act 1949
(d) TTWMA — Te Ture Whenua Maori Act 1993
(e) PRA review — the Commission’s review of the PRA concluding in
the final report Review of the Property (Relationships) Act 1976 |
Te Arotake i te Property (Relationships) Act 1976
- Including
Te Aka Matua o te Ture | Law Commission The Taking into Account of Te Ao
Maori in Relation to Reform of the Law of Succession (NZLC MP6, 1996) and
notes from various hui the Commission attended during its work in the
1990s.
- Including
Te Tumu Paeroa | The Māori Trustee, Te Puni Kōkiri, Te Kooti Whenua
Māori | the Māori Land Court,
and Te Rōpū Whakamana i te
Tiriti o Waitangi | the Waitangi Tribunal.
- Ian
Binnie and others Entitlements to deceased people’s property in New
Zealand: Public attitudes and values – A general population survey
(Te Whare Wānanga o Ōtākou | University of Otago, research
report to the Michael and Suzanne Borrin Foundation, Dunedin,
April
2021).
(f) Intestacy regime — the regime for the distribution of
wholly or partially intestate estates under Part 3 of the Administration
Act
1969
(g) Personal representatives — we use this term to refer to both
executors, who are appointed under a will to carry out the
terms of the will,
and administrators, who have been granted letters of administration in respect
of deceased estates
(h) Partner — a person in a qualifying relationship under the PRA,
including a spouse, civil union partner or partner to a de
facto
relationship
(i) 1990s succession review — the Commission’s review of aspects
of succession law, carried out over 1996–1997
(j) Succession Survey – the survey of public attitudes and values
towards succession issues carried out by the University of
Otago
(k) New Act — the new, comprehensive single statute we suggest should
govern claims against estates in place of the PRA, FPA
and TPA and related
common law and equitable causes of action.
- When
discussing te Tiriti o Waitangi | the Treaty of Waitangi in this Issues
Paper, we use “the Treaty” as a generic
term that is intended to
capture both the Māori text (te Tiriti o Waitangi) and the English text
(the Treaty of Waitangi). When
we are referring to the Māori text only, we
either use the term “te Tiriti”, refer to “the Māori
text”
or make this clear in the context. When we are referring to the
English text only, we refer to the “English text”
or make this
clear in the context. To the extent that the principles of the Treaty, which
have developed through jurisprudence, substantively
reflect the rights and
obligations arising from the texts, the principles may also be captured by
the term “the Treaty”.
Otherwise, we specifically refer to
“the principles of the Treaty” or to specific principles. The
Treaty and
key Māori terms and concepts used in this Issues Paper are
described in Chapter 2.
STRUCTURE OF THIS ISSUES PAPER
- This
Issues Paper is organised into three parts:
(a) Part One examines
the basis for good succession law in contemporary Aotearoa New Zealand.
(b) Part Two addresses the entitlements to and claims against estates.
(c) Part Three considers making and resolving claims.
Part One
- Part
One considers both a conventional state law approach to succession law and an ao
Māori approach to succession. Chapters
1 and 2 address each approach
separately. The purpose of this is to allow consideration of an ao Māori
perspective without assuming
that it is appropriate for state law to determine
succession matters for Māori rather than tikanga (the option of creating
better
state law for all is discussed in Chapter 8 below). However, we
anticipate that the feedback we receive will allow us to draw together
these
separate threads in our report and will influence our recommendations.
- In
Chapter 1, we examine the changing demographics in Aotearoa New Zealand. We
identify criteria that we have used when developing
the proposals presented in
this Issues Paper. We conclude the chapter by presenting our proposal that there
should be a single, comprehensive
statute that governs claims against estates
(the new Act).
- Chapter
2 lays out our framework for developing good succession law from an ao
Māori perspective. We acknowledge the significance
of succession in te ao
Māori. We explore the tikanga relevant to succession. We explain how this
tikanga is an independent
source of rights and obligations in te ao Māori
and the first law of Aotearoa. We recognise that this review engages te Tiriti
guarantee of tino rangatiratanga and how that requires Māori to retain
control over tikanga.
Part Two
- In
Chapter 3, we address a surviving partner’s relationship property
entitlements. We propose that a surviving partner of
the deceased should
continue to have the right to choose to divide the couple’s
relationship property or to take only
what is provided to them under the
deceased’s will or in an intestacy.
- In
Chapter 4, we propose the repeal of the FPA. In its place, we propose the new
Act provide for certain family members to claim “family
provision”
from the estate. We present options for the surviving partner, children under a
prescribed age and disabled children
of the deceased. We also present an option
for all children of the deceased to claim family provision in the form of a
“recognition
award”, although for reasons given in Chapter 4, we do
not favour this option.
- Chapter
5 examines the law that applies when a person claims against an estate in
respect of the contributions they have made
towards the deceased or their
estate. We propose a new statutory cause of action to be contained in the new
Act to codify the
law in this area.
- Chapter
6 addresses the intestacy regime and whether it reflects the way most intestate
people in contemporary Aotearoa New Zealand
would want their estate distributed
when they die. We propose options for which family members should succeed to
intestate estates,
in what shares and in what priority.
- In
Chapter 7, we focus on succession to taonga. We consider whether the succession
to taonga should be excluded from state law and
instead be governed by tikanga
Māori.
- Chapter
8 suggests that responsible kāwanangatanga involves recognising and
providing for Māori perspectives. We ask how
tikanga Māori might
recognise and respond to various aspects of succession. We focus on the tikanga
relating to the expression
of testamentary wishes, obligations to a surviving
partner and other whānau members (particularly tamariki), and obligations
to someone who has contributed to a deceased or their estate.
Part Three
- In
Chapter 9, we examine what property should be claimable under the new Act, the
respective priorities between claims, and options
for what anti-avoidance
mechanisms the new Act might incorporate to access property that may fall
outside an estate.
- Chapter
10 explores the court’s power to grant individuals use and occupation
orders over an estate. We propose the court should
have powers under the new Act
to grant rights to use or occupy property of the estate to meet the needs of the
deceased’s
surviving partner or minor or dependent children.
- In
Chapter 11, we discuss the law that governs agreements people may make during
their lifetime that determine rights against their
estates when they die. We
also look at the law that applies to parties wishing to enter agreements to
settle disputes. We propose
options for when and how parties can make these
types of agreements.
- Chapter
12 looks at the jurisdiction of the courts to hear and determine claims under
the new Act. We propose that te Kōti
Whānau | the Family Court and te
Kōti Matua | the High Court should hold concurrent first instance
jurisdiction, except
that te Kōti Matua | the High Court should continue to
hold jurisdiction for issues concerning the administration and distribution
of
intestate estates.
- Chapter
13 explores issues with the law and procedure relating to how disputes are
resolved when they go to court. We address matters
such as time limits,
disclosure of information, evidence, representation of parties, costs and delays
in the courts.
- Chapter
14 focuses on the law and procedure that applies to the resolution of disputes
out of court. We look at various matters such
as the legality of settling some
claims without court involvement, the procedure that should apply to settlement
and the representation
of parties.
- In
Chapter 15, we look at the resolution of disputes from an ao Māori
perspective. We examine ways disputes may be resolved in
a way consistent with
tikanga Māori, and we ask what can be done to support these processes.
- In
Chapter 16, we address the duties that should fall on personal representatives
when claims are made against an estate under the
new Act.
- Chapter
17 examines the cross-border elements to claims against an estate. It covers
matters such as choice of law rules, foreign
law agreements, enforcement and
jurisdiction.
- Lastly,
Chapter 18 covers a range of other reform issues. We emphasise the need for
education about the law relating to succession.
We look at the revocation rules
under sections 18 and 19 of the Wills Act 2007 when people enter or leave
marriages or civil
unions. We address the relationship between social security
and family provision claims. Lastly, we comment on the court’s
power to
validate wills under the Wills Act, multi-partner relationships and distributing
estates without grants of administration.
- We
ask questions throughout this Issues Paper to seek your views. You can respond
to any or all of these questions and raise any
issues we have not
covered.
Part One
Succession law for contemporary Aotearoa New Zealand
CHAPTER 1
Developing
good succession law
IN THIS CHAPTER, WE CONSIDER:
- the context and
current law relating to claims against an estate;
- the increasing
diversity of New Zealanders and their families;
- public attitudes
about succession as revealed through the Succession Survey;
- criteria for
good succession law; and
- the desirability
of a single statute addressing claims against estates.
INTRODUCTION
- 1.2 Before
considering specific issues with the law and proposals for reform, it is helpful
to place this review in context. This
chapter considers the current law relating
to claims against estates, the changing demographics of Aotearoa New Zealand,
public attitudes
towards succession and what may be considered criteria for good
succession law. This chapter concludes with our proposal that claims
against
estates be consolidated into a single statutory regime.
- 1.3 This chapter
explores what it means to develop good succession law at a general level and
with a focus on state law. However,
succession from an ao Māori perspective
differs to state law. In Chapter 2, we acknowledge the significance of
succession in
te ao Māori and set out a framework for developing good
succession law from an ao Māori perspective. Chapter 2 should therefore
be
read alongside this chapter. We have set out this discussion separately to allow
consideration of possible approaches without
assuming that it is appropriate for
succession matters for Māori to be determined by state law rather than
tikanga (the option
of creating better state law for all is discussed in Chapter
8 below). We expect that the feedback we receive will allow us to draw
together
these separate threads in our report and will influence our
recommendations.
CONTEXT AND CURRENT LAW RELATING TO CLAIMS AGAINST AN
ESTATE
- 1.4 The
law of succession is the body of law that governs how a person’s
property is distributed on their death. Succession
law follows logically from
the law that recognises property rights during a person’s lifetime, such
as rights to ownership,
use and exclusion of others. These laws are well
established in Aotearoa New Zealand, reflecting the British law that developed
in the 18th century largely as a product of the rise of liberal
individualism.1 Croucher and
Vines have observed that “the emphasis on the right to do what one liked
with one’s property reflected
the social theory of the time –
the importance of the individual, the emphasis on free will, the importance
of contract
and the rise of capitalism”.2
- 1.5 The most
common means of succeeding to the property of a deceased is by being named
a beneficiary of their will. A will
is a legal document that sets out the wishes
of the will- maker for the distribution of their estate after they die. Where
there
is no will, the Administration Act 1969 sets out rules for how a
person’s estate is to be distributed (the intestacy regime).3
- 1.6 The
deceased’s will or the intestacy regime only governs the distribution of
the deceased’s estate. An estate does
not include any property the
deceased gave away during their lifetime, such as gifts or property the deceased
settled on trust. Nor
does an estate include property that passes independently
of the will or intestacy regime, such as jointly owned property that passes
to a
co-owner by survivorship.
- 1.7 Succession
law in Aotearoa New Zealand provides an individual with freedom to choose what
will happen to their property on their
death. Their decisions will be reflected
in the terms of their will or the way they structure their affairs to include or
exclude
certain property from their estate. This is sometimes referred to as
testamentary freedom.
- 1.8 Testamentary
freedom is not absolute in existing succession law. A competing objective of
succession law has been to ensure that
property passes from the deceased to
their family members. The law provides certain individuals with entitlements to,
or the right
to claim against, the deceased’s estate despite how the
deceased may have wanted their property to be distributed. These entitlements
and claims are the subject of this review. In particular, we focus
on:
(a) the entitlements of the deceased’s surviving partner
to relationship property under the Property (Relationships) Act 1976
(PRA)
(Chapter 3);
(b) the rights of the deceased’s family to claim provision from the
estate under the Family Protection Act 1955 (FPA) for their
proper maintenance
and support (Chapter 4);
(c) the rights of individuals who may have conferred a benefit on the
deceased or the estate for which the law provides a remedy under
the Law Reform
(Testamentary Promises) Act 1949 (TPA) or through the common law or equity
(Chapter 5); and
- See
Sylvia Villios and Natalie Williams “Family provision law, adult children
and the age of entitlement” [2018] AdelLawRw 11; (2018) 39 Adel L Rev 249 at 250.
- Rosalind
F Croucher and Prue Vines Succession: Families, Property and Death (5th
ed, LexisNexis Butterworths, Chatswood (NSW), 2019) at
[1.36].
3 See Administration
Act 1969, ss 75, 77 and 78–79.
(d) the rights of family members to receive the deceased’s
property if the deceased died intestate (Chapter 6).
- 1.9 The existing
state law of succession reflects societal attitudes and values prevalent at the
time the laws were drafted. As we
review these laws, we need to consider how
attitudes and values have changed. This review calls for careful consideration
of fundamental
questions, such as who is “family”, who ought to
receive property when a person dies and for what reasons, and the importance
to
be accorded to a person’s personal wishes in disposing property on their
death. These questions are considered from an ao
Māori perspective in
Chapter 2.
INCREASING DIVERSITY OF NEW ZEALANDERS AND THEIR
FAMILIES
- 1.10 Except
for the PRA, the main statutes under review were drafted in the mid-20th
century. Since then, Aotearoa New Zealand has
undergone a period of significant
social change.
- 1.11 Aotearoa
New Zealand is now more ethnically diverse. In 2018, 27.4 per cent of all New
Zealanders were born in another country.4 Those identifying as European
represented the biggest ethnic group in Aotearoa New Zealand (70.2 per cent).5 Those identifying as Māori
accounted for 16.5 per cent of the population in the 2018 Census, increasing
from
14.9 per cent in the 2013 Census.6
Other ethnic groups have also grown in recent years. Those identifying as
Asian accounted for 15.1 per cent of the population in
the 2018 Census,
compared with 11.8 per cent in the 2013 Census.7 Those identifying as Pacific
peoples accounted for 8.1 per cent of the population in the 2018 Census compared
with
7.4 per cent in the 2013 Census.
- 1.12 There is
increasing diversity of family arrangements. The marriage rate has declined
from
35.46 per 1,000 of the unmarried population in 1976 to 9.83 in 2019. 8 De facto relationships are
more common. In 2013, 22 per cent of people who were partnered were in a de
facto relationship, up
from eight per cent in 1986.9 It is now common for most
- Tatauranga
Aotearoa | Stats NZ “Ethnic group summaries reveal New Zealand’s
multicultural make-up” (3 September
2020) <www.stats.govt.nz>.
- Tatauranga
Aotearoa | Stats NZ “Ethnic group summaries reveal New Zealand’s
multicultural make-up” (3 September
2020) <www.stats.govt.nz>.
- Tatauranga
Aotearoa | Stats NZ “Ethnic group summaries reveal New Zealand’s
multicultural make-up” (3 September
2020) <www.stats.govt.nz>.
- Tatauranga
Aotearoa | Stats NZ “Ethnic group summaries reveal New Zealand’s
multicultural make-up” (3 September
2020) <www.stats.govt.nz>.
- Te
Aka Matua o te Ture | Law Commission Relationships and Families in
Contemporary New Zealand | He Hononga Tangata, he Hononga Whānau i
Aotearoa o Nāianei (NZLC SP22, 2017) at ch 1, figure 1a, citing
Tatauranga Aotearoa | Stats NZ "General marriage rate, December years (total
population)
(Annual-Dec)” (June 2017) <www.stats.govt.nz>; Tatauranga Aotearoa
| Stats NZ “Marriages, civil unions, and divorces” <www.stats.govt.nz>.
- Te
Aka Matua o te Ture | Law Commission Relationships and Families in
Contemporary New Zealand | He Hononga Tangata, he Hononga Whānau i
Aotearoa o Nāianei (NZLC SP22, 2017) at 15, citing Tatauranga Aotearoa
| Stats NZ “Partnership status in current relationship and ethnic group
(grouped total responses) by age group and sex, for the census usually resident
population count aged 15 years and over, 2001, 2006
and 2013 Censuses”
<www.stats.govt.nz>.
couples to have lived for some time in a committed de facto relationship
before choosing to marry or enter a civil union.10
- 1.13 More people
leave relationships and enter new ones. In 1962, for example, 3.2 of every
1,000 marriages ended in divorce, compared
with 8.6 of every 1,000 marriages in
2019.11 Information on de facto
separations is not routinely collected in Aotearoa New Zealand, although some
evidence suggests that a de
facto relationship is more likely than a
marriage to end in separation.12
Remarriages have increased, accounting for 28 per cent of all marriages
in 2019 compared with 16 per cent in 1976.13
- 1.14 Children
are less likely to be born to married parents. In 1976, 17 per cent of all
births in Aotearoa New Zealand were to parents
who were not married.14 In 2018, 46 per cent of babies
were born to unmarried parents.15
- 1.15 Stepfamilies
are more common. One study in Aotearoa New Zealand found that one in five
children had lived in a stepfamily
before age 17.16 A recent longitudinal survey
found that only seven per cent of children lived from their birth to age 15 in
households containing
only nuclear family members.17
- 1.16 Life
expectancy is progressively increasing and projected to keep increasing. Those
reaching 65 today can expect to live another
21 years on average.18 A new-born today can expect
to live more than 90 years, on average. 19 The baby boomer generation
(usually someone born in the years 1946—65) are moving into the 65+ age
bracket, meaning the oldest
segment of Aotearoa New Zealand’s population
is now the fastest growing.20
- 1.17 The 85+
section of the population is also growing significantly. The 2018 Census showed
that there were around 85,000 people
aged 85+.21 It is likely that, by 2041,
220,000 –
- Te
Aka Matua o te Ture | Law Commission Relationships and Families in
Contemporary New Zealand | He Hononga Tangata, he Hononga Whānau i
Aotearoa o Nāianei (NZLC SP22, 2017) at
17.
11 Tatauranga Aotearoa |
Stats NZ “Marriages, civil unions and divorces: Year ended December
2019” (5 May 2020)
<www.stats.govt.nz>.
- See
Te Aka Matua o te Ture | Law Commission Relationships and Families in
Contemporary New Zealand | He Hononga Tangata, he Hononga Whānau i
Aotearoa o Nāianei (NZLC SP22, 2017) at 26–27 and the studies
cited therein.
13 Tatauranga
Aotearoa | Stats NZ “Marriages, civil unions and divorces: Year ended
December 2019” (5 May 2020)
<www.stats.govt.nz>; Tatauranga Aotearoa |
Stats NZ “First Marriages, Remarriages, and Total Marriages
(including Civil Unions) (Annual-Dec)”
(May 2017) <www.stats.govt.nz>.
14 Tatauranga Aotearoa | Stats NZ
“Live births by nuptiality (Maori and total population)
(annual-Dec)” (May 2017)
<www.stats.govt.nz>.
- Tatauranga
Aotearoa | Stats NZ “Good things take time: Changes in the timings of key
life events across two generations”
(5 December 2019) <www.stats.govt.nz>.
- Arunachalam
Dharmalingam and others Patterns of Family Formation and Change in New
Zealand (Te Manatū Whakahiato Ora | Ministry of Social Development,
2004) at 73.
- This
was a sub-study of the Dunedin Multidisciplinary Health and Development Study,
involving 209 participants: see JL Sligo and
others “The dynamic, complex
and diverse living and care arrangements of young New Zealanders: implications
for policy”
(2017) 12 Kōtuitui: New Zealand Journal of Social
Sciences Online 41 at
47.
18 Tatauranga Aotearoa |
Stats NZ Demographic trends: implications for the funeral industry
(January 2016) at 4.
19 Tatauranga Aotearoa | Stats NZ
Demographic trends: implications for the funeral industry (January
2016) at 4.
20 Tatauranga Aotearoa | Stats NZ
Demographic trends: implications for the funeral industry (January 2016)
at 4.
21 Tatauranga Aotearoa | Stats NZ
“2018 Census” <www.stats.govt.nz>.
270,000 people will be aged 85+, and 320,000–450,000 by 2068.22 By the 2050s, about one in
four people aged over 65 will be aged 85+, compared with one in eight people in
2014.23 These projections
indicate large increases in the need for daily and weekly care of older people
in the coming years.24
PUBLIC ATTITUDES ABOUT SUCCESSION
- 1.18 The
Succession Survey reveals attitudes and values toward issues in succession from
a nationwide, statistically representative
sample of the population, with
“booster” targets for Māori, Pacific peoples and Asian
populations.25 We refer to the
Succession Survey results throughout this paper. Statistically significant
results for particular subgroups of the
population are commented on in the
Succession Survey. This discussion identifies findings from the Survey that
inform criteria for
the development of good succession law.
- 1.19 When asked
whether respondents agreed or disagreed that a person should be allowed to leave
family members out of their will,
80 per cent either agreed or strongly
agreed.26 This appears to suggest that
New Zealanders value testamentary freedom.
- 1.20 Respondents
were then presented with specific scenarios in which certain family members of
the deceased were left out of the
will. Respondents were asked if they agreed
these family members should be allowed to challenge a will to get a share of the
estate.
In most cases, a majority of respondents agreed. There were high levels
of support for young or disabled children of the deceased
being able to
challenge a will. Views were less strong in other situations regarding adult
children and stepchildren. In all scenarios,
respondents agreed a
deceased’s surviving partner should receive a share of the estate. Around
three-quarters of respondents
agreed a surviving partner should be entitled to
the share of relationship property they would otherwise have received had the
couple
hypothetically separated during their lives.27
- 1.21 We discuss
these results in greater detail in later chapters. These findings suggest that,
although New Zealanders value testamentary
freedom, there is also a strong
expectation that some family members should succeed to the deceased’s
property, even if they
were left out of the deceased’s
will.
22 Tatauranga Aotearoa |
Stats NZ Demographic trends: implications for the funeral industry
(January 2016) at 5.
23 Tatauranga Aotearoa | Stats NZ
Demographic trends: implications for the funeral industry (January
2016) at 5.
- One
study concludes that large increases in the need for daily and weekly care are
expected by 2026: Ngaire Kerse and others Intervals of care need: need for
care and support in advanced age – LiLACS NZ (Te Whare Wānanga o
Tāmaki Makaurau | University of Auckland, 21 April 2017) at 11.
- Ian
Binnie and others Entitlements to deceased people’s property in New
Zealand: Public attitudes and values – A general population survey
(Te Whare Wānanga o Ōtākou | University of Otago, research
report to the Michael and Suzanne Borrin Foundation, Dunedin,
April 2021) at
[66]–[74].
- Ian
Binnie and others Entitlements to deceased people’s property in New
Zealand: Public attitudes and values – A general population
survey (Te Whare Wānanga o Ōtākou | University of Otago,
research report to the Michael and Suzanne Borrin Foundation,
Dunedin, April
2021) at [95] and figure 1.
- Ian
Binnie and others Entitlements to deceased people’s property in New
Zealand: Public attitudes and values – A general population survey
(Te Whare Wānanga o Ōtākou | University of Otago, research
report to the Michael and Suzanne Borrin Foundation, Dunedin,
April 2021) at
[148] and figure 13.
CRITERIA FOR GOOD SUCCESSION LAW
- 1.22 In
developing proposals for reform presented in this Issues Paper, we have been
guided by criteria that we think will lead to
good succession law. Those
criteria are:
(a) meeting general objectives of:
(i) consistency with the Treaty;
(ii) reflecting values and attitudes of contemporary Aotearoa New
Zealand;
(iii) aligning with fundamental values and principles of a democratic society
and Aotearoa New Zealand’s international obligations;
and
(iv) making law that is clear and accessible;
(b) sustaining property rights and expectations;
(c) promoting positive outcomes for families and whānau; and
(d) promoting efficient estate administration and dispute resolution.
- 1.23 It is
important to recognise that these criteria do not complement each other in all
cases. They often involve conflict. Our
task has been to carefully balance the
competing objectives in a way we consider will make the best law.
General matters
- 1.24 First,
there are several general matters that we consider make good succession
law:
(a) The law should be consistent with the Treaty. We discuss
how that might be achieved in Chapter 2.
(b) The law should reflect values and attitudes of contemporary Aotearoa New
Zealand. As noted above, the law of succession should
follow society’s
attitudes to various concepts about family and property rights. Where evidence
is available, we have attempted
to base our proposals on public attitudes and
values. The Succession Survey has been helpful. We will rely too on the
feedback we
receive to this Issues Paper when finalising our
recommendations.
(c) The law should align with fundamental values and principles of Aotearoa
New Zealand’s democratic society and comply with
its international
obligations. Good law recognises and respects fundamental human rights,
including the rights affirmed in the New
Zealand Bill of Rights Act 1990 and
international instruments. We have given particular attention to the United
Nations Convention
on the Rights of the Child and the United Nations Declaration
on the Rights of Indigenous Peoples.
(d) The law should be clear and accessible. We will all be affected by
succession law at some point in our lives. It is important
that everyone can
access the law and understand their rights and obligations. Our proposal for a
single statute that we discuss
below is based on this objective.
Sustaining property rights and expectations
- 1.25 Second,
we consider the law should sustain property rights and expectations. The main
focus of this criterion is will-makers’
testamentary freedom.
- 1.26 An owner of
property generally has rights to deal with that property in whatever way they
wish. A question arises as to what
extent this right applies when the owner
dies. The traditional approach in common law jurisdictions is to recognise
property owners’
testamentary freedom.28
- 1.27 As set out
above, the law in Aotearoa New Zealand maintains testamentary freedom. Although
the right is qualified by the various
claims individuals can bring to seek
further provision from the estate, a properly executed will remains effective
until successfully
challenged.
- 1.28 While the
public may consider the right might be qualified in certain circumstances, we
consider testamentary freedom generally
aligns with public attitudes and
expectations evidenced in the Succession Survey. There are further reasons to
support a property
owner’s testamentary freedom:
(a) The
will-maker is usually the best person to judge who is family and what duties are
owed to them when distributing their estate.
(b) There is symbolic value in beneficiaries receiving gifts that the
will-maker has intentionally chosen to make, rather than through
the operation
of statute or a court order.
(c) The community may collectively benefit where will-makers have freedom to
extend their testamentary dispositions to charities and
other community
organisations.
- 1.29 In addition
to a will-maker’s rights, there are property rights and expectations of
others to be considered. A beneficiary
of a will has an interest in seeing the
deceased’s testamentary wishes to benefit them upheld. Parties that
acquire rights
to property held by the deceased during the deceased’s life
have an interest in those rights enduring against the estate. A
surviving
partner’s relationship property rights are an important example.
- 1.30 For these
reasons, in a testamentary context, our preliminary view is that any restriction
on the property rights individuals
enjoy during their life must be supported by
clear policy reasons.
- Banks
v Goodfellow (1870) 5 LR QB 549 at 563. Cockburn CJ observed that
“the law of every civilised people concedes to the owner of property
the right of determining by his last will, either in whole or in part, to whom
the effects which he leaves behind him shall
pass”. However, he
qualified this statement by explaining that a property owner would be under a
“moral responsibility
of no ordinary importance” to make provision
for “those who are the nearest to them in kindred and who in life have
been
the objects of their affection”. Unrestricted testamentary freedom
developed in the
18th century largely from the rise of liberal
individualism, led by thinkers such as John Locke, Jeremy Bentham and John
Stuart Mill:
see Rosalind F Croucher and Prue Vines Succession: Families,
Property and Death (5th ed, LexisNexis Butterworths, Chatswood (NSW), 2019)
at 16–17; and Sylvia Villios and Natalie Williams “Family provision
law, adult children and the age of entitlement” [2018] AdelLawRw 11; (2018) 39 Adel L Rev 249
at 250.
Promoting positive outcomes for families and
whānau
- 1.31 The
Commission in the 1990s succession review said an important aim of good
succession law is to promote strong social relationships
that lend themselves to
voluntary co- operation and mutual support among family members.29 We agree. There is likely to
be debate, however, on how the law should promote family and whānau
relationships.
- 1.32 For 120
years, Aotearoa New Zealand has attempted to recognise obligations to family of
the deceased primarily through family
protection legislation.30 Prior to its enactment, case
law had referred to a “moral responsibility of no ordinary
importance” on the deceased to
provide for “those who are nearest to
them in kindred and who in life have been the objects of their
affection”.31 This
“moral duty” has now been given legal force by providing certain
family members a statutory right to claim further
provision from the estate when
the deceased has not made adequate provision for their “proper maintenance
and support”.32
- 1.33 While a
claim may benefit the successful party, we are mindful of the limitations of
this approach in achieving family cohesion.
Some have argued that this approach
too readily frustrates the deceased’s wishes and the expectations of
those they intended
to benefit.33 Others question how judicial
redistribution of an estate can effectively rectify a parent’s failure to
recognise their family
in their will.34
- 1.34 We are also
mindful of the growing diversity of families in Aotearoa New Zealand. Who
constitutes “family” and what
obligations should be owed to them is
an increasingly complex inquiry. In the 1990s succession review the
Commission addressed
these concerns by observing that the values that best
promote cohesion are normally those of the family itself, as long as it
is
well functioning.35 In many
cases the best person to judge how best to recognise family members is the
will-maker.36
- 1.35 In our
preliminary view, there are various ways the law can usefully promote positive
outcomes for family and whānau relationships.
First, it can promote
positive ways of thinking about relationships and their consequences. For
example, in Chapter 3, we
explain a partner’s entitlement to
relationship property on death arises from each partner’s
contributions to a
“family joint venture” which are deemed to be of
equal value. In Chapter 8, we ask how tikanga addresses obligations
to a
surviving partner. Also, in Chapter 4, we recognise that, in some family
arrangements, there may be non-biological children
for whom the deceased had
assumed, in an enduring way, the responsibilities of
- Te
Aka Matua o te Ture | Law Commission Succession Law: Testamentary Claims
– A discussion paper (NZLC PP24, 1996) at
[24].
30 The first legislation
enacted was the Testator’s Family Maintenance Act 1900.
31 Banks v Goodfellow (1870) 5 LR
QB 549 at 563.
32 Family Protection Act 1955, s 4.
- Nicola
Peart “New Zealand’s Succession Law: Subverting Reasonable
Expectations” (2008) 37 Comm L World Rev 356
at
378–379.
34 John Caldwell
“Family protection claims by adult children: what is going on?”
(2008) 6 NZFLJ 4 at 9.
- Te
Aka Matua o te Ture | Law Commission Succession Law: Testamentary Claims
– A discussion paper (NZLC PP24, 1996) at [25].
- Te
Aka Matua o te Ture | Law Commission Succession Law: Testamentary Claims
– A discussion paper (NZLC PP24, 1996) at [25].
a parent. In our preliminary view, they should be considered children of the
deceased and be eligible for family provision from that
parent’s
estate.
- 1.36 Second, the
law may reflect the presumed family bonds of aroha, love and affection when
setting a default regime for who should
succeed to a deceased’s property
when they have not made a will. In Chapter 6, we set out proposals for which
family members
should succeed in an intestacy and in what priority. In Chapter
8, we ask how tikanga responds to the distribution of property when
someone dies
without expressing any testamentary wishes.
- 1.37 Third, the
law can provide family members freedom to come to their own arrangements about
what they mutually consider to be a
fair way for property to be distributed
on death. In Chapter 11, we propose processes for family members to make
agreements
about their property while ensuring those involved are informed of
their rights. We consider this approach is likely to lead
to more
satisfactory and enduring outcomes than if a judge imposed outcomes on
parties.
- 1.38 Lastly, the
law can provide for clear and efficient procedures that promote the quick and
efficient resolution of disputes. It
is important for families and whānau
to have the tools and procedures to work through disagreements in a way that
minimises
conflict and gives family and whānau members the best chance of
remaining on good terms (see Chapters 11 and 14).
Promoting efficient estate administration and dispute
resolution
- 1.39 It
is essential the law facilitates claims against estates in a way that minimises
delays and costs to their administration and
distribution. There are several
ways the law can do this:
(a) The law needs to be clear, simple and
accessible. Will-makers should be able to understand what obligations they owe
when deciding
on the terms of their will. For those who wish to claim against an
estate or defend a claim, the law should enable them to understand
their rights
and to determine the strength of such a claim. For personal representatives
charged with administering and distributing
an estate, the law should be clear
on their duties and what claims can be properly admitted.
(b) There should be clear processes for resolving disputes in and out of
court. Parties should be able to understand what processes
may be followed to
resolve disputes. They should understand their legal and procedural obligations
to facilitate the efficient resolution
of disputes, such as disclosure of
information and the need to organise the representation of minors or others who
may lack capacity.
(c) Parties should be able to settle disputes without the need for defended
court proceedings. In Chapters 11 and 14, we explain how
the law can facilitate
the settlement of disputes through agreement while ensuring parties are aware of
their rights and unjust outcomes
are avoided. In Chapter 15 we look at the
resolution of disputes from an ao Māori perspective.
THE NEED FOR A SINGLE STATUTE
- 1.40 The
law providing for claims against estates is found across several statutes, the
common law and equity. As the law should be
clear and accessible, our
preliminary view is that there should be a single, comprehensive statutory
regime that governs claims against
estates (the new Act). The new Act would
enable parties to refer to a single source to understand the law. It should be
clear and
readable, consistent with modern drafting standards.
- 1.41 Throughout
this Issues Paper we present proposals for what law should be contained in the
new Act. To summarise, our preliminary
view is that the new Act should set out
the law governing:
(a) relationship property entitlements, which
will replace, and require the repeal of, Part 8 of the PRA;
(b) family provision claims, which will replace, and require the repeal of,
the FPA; and
(c) contribution claims, which will replace, and require the repeal of, the
TPA as well as codifying aspects of the common law and
equity.
- 1.42 In Chapter
6, we propose reforms to the intestacy regime under Part 3 of the
Administration Act. We raise the question of
whether a reformed intestacy
regime ought to sit within the new Act or remain in the Administration
Act.
- 1.43 The content
of the new Act will also take into account the feedback we receive in relation
to the ao Māori framework we
set out in Chapter 2 and the matters discussed
in Chapters 7, 8 and 15.
- 1.44 The
proposed new Act would not completely codify the law. Instead, it should be
regarded as the principal source of law. To the
extent the new Act addresses
matters, the new Act should apply over other law. For contribution claims,
however, our preliminary
view is that the new Act should codify claims for which
the TPA, the common law and equity provide remedies in respect of benefits
provided to the deceased or the estate.
- 1.45 Other
statutes relating to succession and the administration of estates would continue
to exist alongside the new Act, such as
the Wills Act 2007 (and possibly
the remainder of the Administration Act).
- 1.46 During our
preliminary engagement and research, we heard arguments for a wider statute that
would bring together all law relating
to succession, including the provisions of
the Wills Act and the Administration Act.37 This suggestion is outside the
scope of this review and, consequently, the furthest we might take that
suggestion is to recommend
that the Government give it further consideration.
The Government could, for example, consider drafting the proposed new Act in
such
a way that it could later form a part of a wider succession Act if
enacted.
- See
for example Greg Kelly “An Inheritance Code for New Zealand” (LLM
Dissertation, Te Herenga Waka | Victoria University
of Wellington, 2010). The
Commission’s work in the 1990s had as its ultimate aim a new
Succession Act drafted in plain
language that would provide for all succession
laws in one statute, including the law regarding wills, administration and
intestacies:
Te Aka Matua o te Ture | Law Commission Succession Law:
Testamentary Claims – A discussion paper (NZLC PP24, 1996) at
vii.
QUESTIONS
|
|
Q1
|
What are your views on the criteria we have identified that make good
succession
|
law?
|
Q2
|
Do you agree with our proposal for a single statute that governs claims
against
|
estates?
|
CHAPTER 2
Te
ao Māori and succession
IN THIS CHAPTER WE CONSIDER:
our framework for
considering an ao Māori perspective on succession.
the tikanga relevant
to succession; and
•
•
- the implications
of te Tiriti o Waitangi | the Treaty of Waitangi for this review;
INTRODUCTION
- 2.1 Succession
is an important matter for Māori.
- 2.2 We have
outlined in the Introduction the steps we have taken to date to inform ourselves
of the rights and interests of Māori
and to appreciate from Māori the
nature and cultural dimensions of succession within te ao Māori. This is
ongoing work,
and we hope to receive feedback that further helps us to address
succession matters of concern to Māori.
- 2.3 While our
review does not include the rules about succession in Te Ture Whenua Maori Act
1993 (TTWMA), we recognise the centrality
of succession to land within te ao
Māori. We may therefore comment on aspects of TTWMA but do not intend to
make recommendations
to change it.
- 2.4 This chapter
outlines our framework for considering an ao Māori perspective on
succession. It builds on the Commission’s
succession work in the 1990s
where significant work was undertaken by the Commission and external
consultants.1
- Edward
Taihakurei Durie “Custom Law” (paper prepared for Te Aka Matua o te
Ture | Law Commission, January 1994); Joan
Metge “Succession Law:
Background Issues Relating to Tikanga Maori” (paper prepared for Te Aka
Matua o te Ture | Law
Commission, 1994); Joseph Williams “He Aha Te
Tikanga Maori” (paper prepared for Te Aka Matua o te Ture
|
Law Commission (draft), 1998); and David V Williams “He Aha Te Tikanga
Maori” (paper prepared for Te Aka Matua o te
Ture | Law Commission
(revised draft), 10 November 1998). The Commission retained consultants
(Professor Patu Hohepa, Dr David Williams
and Waerete Norman) to advise on
succession as it relates to Māori families. A number of hui were conducted
around Aotearoa
New Zealand to assist the Commission to hear from Māori
about succession issues. Professor Hohepa and Dr Williams drafted a
paper
published as Te Aka Matua o te Ture | Law Commission The Taking into Account
of Te Ao Maori in Relation to Reform of the Law of Succession (NZLC MP6,
1996). See also Te Aka Matua o te Ture | Law Commission Māori Custom and
Values in New Zealand Law (NZLC SP9, 2001) at 283–295.
In its Preliminary Paper Succession Law: Testamentary
Claims, the Commission noted that:2
Testamentary claims by Māori families are of special concern. This is an
area of intense interest for Māori. Te Tiriti
o Waitangi (the Treaty of
Waitangi) confirms and guarantees to Māori te tino rangatiratanga
(unqualified exercise of chieftainship).
The Crown must respect Māori
control over the inheritance of property. Laws affecting succession to
Māori property should
recognise that the fundamental principles of tikanga
(custom law) apply amongst
Māori people.
- 2.5 We have used
the Commission’s earlier work to inform our own thinking. However, we
recognise that this work was done 25
years ago, and we need to understand
Māori perspectives afresh.
TE TIRITI O WAITANGI | THE TREATY OF WAITANGI
- 2.6 Te
Tiriti o Waitangi | the Treaty of Waitangi (the Treaty)3 is a foundation of government
in Aotearoa New Zealand.4 As
recorded in Cabinet guidance:5
The Treaty creates a basis for
civil government extending over all New Zealanders, on the basis of protections
and acknowledgements
of Maori rights and interests within that shared
citizenry.
- 2.7 The
Commission recently discussed the Treaty and tikanga Māori in its report
The Use of DNA in Criminal Investigations | Te Whakamahi i te Ira
Tangata i ngā Mātai Taihara, and we draw on that discussion in
this chapter.6 We also
examine different aspects of the Treaty’s application given the different
context of this review.
- 2.8 The Treaty
was signed in 1840 by representatives of the British Crown and rangatira
representing many, but not all, hapū.7 It comprises a Māori text
and an English text. There are differences between the two texts, as we explain
below. The meaning
and significance of each text, the relationship between them
and whether they can be
- Te
Aka Matua o te Ture | Law Commission Succession Law: Testamentary Claims
(NZLC PP24, 1996) at [11]–[12] (emphasis removed). The Commission also
noted that some court decisions involving tikanga Māori
raise questions
about whether the courts can adequately find out and apply Māori values.
The Commission also intended to consider
taonga such as cloaks, greenstone or
property returned as a result of Treaty of Waitangi claims.
- When
discussing te Tiriti o Waitangi | the Treaty of Waitangi in this paper, we use
“the Treaty” as a generic term that
is intended to capture both the
Māori text (te Tiriti o Waitangi) and the English text (the Treaty of
Waitangi). When we are
referring to the Māori text only, we either use the
term “te Tiriti”, refer to “the Māori text”
or make
this clear in the context. When we are referring to the English text only, we
refer to “the English text" or make this
clear in the context. To the
extent that the principles of the Treaty, which have developed through
jurisprudence, substantively
reflect the rights and obligations arising from the
texts, the principles may also be captured by the term “the Treaty”.
Otherwise, we specifically refer to “the principles of the Treaty”
or to specific principles.
- Kenneth
Keith “On the Constitution of New Zealand: An Introduction to the
Foundations of the Current Form of Government”
in Cabinet Office
Cabinet Manual 2017 1 at 1. The Treaty was not, however, signed by
representatives of all hapū: Te Puni Kōkiri | Ministry of Māori
Development
He Tirohanga ō Kawa ki te Tiriti o Waitangi: A Guide to the
Principles of the Treaty of Waitangi as expressed by the Courts and
the Waitangi
Tribunal (2001) at
14.
5 Cabinet Office Circular
“Te Tiriti o Waitangi/Treaty of Waitangi Guidance” (22 October 2019)
CO (19) 5 at [7].
- Te
Aka Matua o te Ture | Law Commission The Use of DNA in Criminal
Investigations | Te Whakamahi i te Ira Tangata i ngā Mātai
Taihara (NZLC R144, 2020) at [2.6]–[2.31].
- Te
Puni Kōkiri | Ministry of Māori Development He Tirohanga ō
Kawa ki te Tiriti o Waitangi: A Guide to the Principles of the Treaty of
Waitangi as expressed by the Courts and
the Waitangi Tribunal (2001) at
14.
reconciled through interpretation and the elaboration of Treaty principles are
the subject of significant debate, scholarship and
judicial consideration. 8 We acknowledge these ongoing
debates as context for considering the implications of the Treaty for our review
of succession law.
- 2.9 Our
discussion draws on some of this scholarship and judicial consideration as well
as the findings of Te Rōpū Whakamana
i te Tiriti o Waitangi | Waitangi
Tribunal (the Tribunal). The Tribunal was established under the Treaty of
Waitangi Act 1975, and
its functions include inquiring into and making
recommendations on claims that acts or omissions of the Crown are inconsistent
with
“the principles of the Treaty”.9 In performing this function,
the Tribunal must have regard to both texts and, for the purposes of the Treaty
of Waitangi Act, has
exclusive authority to determine the meaning and effect of
the texts and issues raised by the differences between them.10
The Treaty texts
- 2.10 In
the Māori text, article 1 provides that Māori rangatira grant the
Crown kāwanatanga, the right to govern. Article
2 provides that the Crown
will protect the exercise of tino rangatiratanga over lands, villages and taonga
katoa (all things valued
and treasured). Tino rangatiratanga has been described
as the exercise of the chieftainship of rangatira, which is unqualified except
by applicable tikanga.11
- 2.11 Article 1
of the English text provides that Māori rangatira cede the sovereignty
they exercise over their respective
territories to the Crown, while article 2
guarantees to Māori full exclusive and undisturbed possession of their
lands and
other properties.12
- 2.12 Under
article 3 of the English text, the Crown imparted to Māori its protection
as well as all the rights and privileges
of British subjects. A similar
undertaking was conveyed in article 3 of the Māori text, which provides
that the Crown will care
for Māori and give to
- See
for example Carwyn Jones New Treaty, New Tradition: Reconciling New Zealand
and Māori Law (Victoria University Press, Wellington, 2016); Margaret
Mutu “Constitutional Intentions: The Treaty of Waitangi Texts”
in
Malcolm Mulholland and Veronica Tawhai (eds) Weeping Waters – The
Treaty of Waitangi and Constitutional Change (Huia Publishers, Wellington,
2010) 13; Ani Mikaere Colonising Myths: Māori Realities – He
Rukuruku Whakaaro (Huia, Wellington, 2011); and Ned Fletcher “A
Praiseworthy Device for Amusing and Pacifying Savages? What the
Framers
Meant by the English Text of the Treaty of Waitangi”
(PhD Dissertation, University of Auckland, 2014). See also the Waitangi
Tribunal
reports referred to in the following discussion, in particular the discussion in
chs 8 and 10 of Te Rōpū Whakamana
i te Tiriti o Waitangi | Waitangi
Tribunal He Whakaputanga me te Tiriti | The Declaration and the
Treaty: The Report on Stage 1 of the Te Paparahi o Te Raki Inquiry (Wai
1040, 2014).
9 Treaty of Waitangi Act 1975, ss 5(1)
and 6(1).
10 Treaty of Waitangi Act 1975, preamble
and s 5(2).
- IH
Kawharu (ed) Waitangi: Māori and Pākehā Perspectives of the
Treaty of Waitangi (Oxford University Press, Auckland, 1989) at 319. Kawharu
explained that the term emphasised to rangatira their complete control according
to their customs. The term has also been translated as “paramount
authority”: Margaret Mutu “Constitutional Intentions:
The Treaty of
Waitangi Texts” in Malcolm Mulholland and Veronica Tawhai (eds) Weeping
Waters – The Treaty of Waitangi and Constitutional Change (Huia
Publishers, Wellington, 2010) 13 at 19–22; and “absolute
authority”: Te Rōpū
Whakamana i te Tiriti o Waitangi
| Waitangi Tribunal Whaia te Mana Motuhake | In Pursuit of Mana
Motuhake: Report on the Māori Community Development Act Claim (Wai
2417, 2015) at 26.
12 Article 2 also gave the Crown an
exclusive right of pre-emption over any land Māori wanted to
“alienate”.
Māori the same rights and duties of citizenship as the people of England.13 Article 3 has been understood
as a guarantee of equity between Māori and other New Zealanders.14
- 2.13 At the time
of signing the Treaty, Crown representatives made oral undertakings and
assurances to Māori, including an undertaking
to respect Māori customs
and law.15 The Tribunal has
held that these also form part of the agreement reached.16
- 2.14 Not all
hapū were represented among the rangatira signatories to the Treaty. The
Crown has taken the position that the benefit
of the promises it made in the
Treaty extends to all Māori, whether or not they signed the Treaty.17
- 2.15 Five years
before the Treaty was signed, in 1835, a number of northern rangatira signed He
Whakaputanga o te Rangatiratanga o
Nu Tireni | the Declaration of Independence
of the United Tribes of New Zealand. He Whakaputanga was a declaration of the
sovereignty
and independence of those rangatira. The Tribunal has considered the
“striking absence” of any record of explicit discussion
about its
ongoing relevance or its relationship with the Treaty.18 The Tribunal has also
considered the failure of the British to explain why and how the Treaty
nullified He Whakaputanga to be significant.19
- IH
Kawharu (ed) Waitangi: Māori and Pākehā Perspectives of the
Treaty of Waitangi (Oxford University Press, Auckland, 1989) at 321.
- Te
Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Tū
Mai te Rangi! Report on the Crown and Disproportionate Reoffending Rates
(Wai 2540, 2017) at
27.
15 Te Rōpū
Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Muriwhenua Land Report
(Wai 45, 1997) at 114.
- Te
Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal He
Whakaputanga me te Tiriti | The Declaration and the Treaty The Report on
Stage 1 of the Te Paparahi o Te Raki Inquiry (Wai 1040, 2014) at
526–527.
- Te
Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Te
Urewera (Wai 894, 2017) vol 1 at 139. This is reflected in s 9(1) of the
Tūhoe Claims Settlement Act 2014. In 2018, the Tribunal concluded
that the
Treaty applied to non- signatory hapū as a unilateral set of promises by
the Crown to respect and protect their tino
rangatiratanga and other rights just
as it would for hapū whose leaders had signed, noting that out of practical
necessity,
all Māori needed to engage with the Crown on the basis of the
Treaty’s guarantees, whether they had signed the Treaty
or not: Te
Rōpū
Whakamana i te Tiriti o Waitangi | Waitangi
Tribunal Te Mana Whatu Ahuru: Report on Te Rohe Pōtae Claims –
Parts I and II (Wai 898, 2018) at 188.
- Te
Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal He
Whakaputanga me te Tiriti | The Declaration and the Treaty: The Report on
Stage 1 of the Te Paparahi o Te Raki Inquiry (Wai 1040, 2014) at 520.
- Te
Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal He
Whakaputanga me te Tiriti | The Declaration and the Treaty: The Report on
Stage 1 of the Te Paparahi o Te Raki Inquiry (Wai 1040, 2014) at 521. See
also Ani Mikaere Colonising Myths: Māori Realities – He Rukuruku
Whakaaro (Huia Publishers, Wellington, 2011) at 127–128; and He
Whakaaro Here Whakaumu Mō Aotearoa: The Report of Matike Mai Aotearoa
– The Independent Working Group on Constitutional
Transformation
(January 2016) at 43–49.
Te Tiriti
- 2.16 The
overwhelming majority of Māori signatories signed the Māori text
rather than the English text.20
As a result, the Tribunal has said considerable weight should be given to
the Māori text when there is a difference between them.21
- 2.17 With
respect to articles 1 and 2 of te Tiriti, the Tribunal has also observed:22
The guarantee of tino
rangatiratanga requires the Crown to acknowledge Māori control over their
tikanga, resources, and people
and to allow Māori to manage their own
affairs in a way that aligns with their customs and values.
- 2.18 Within te
ao Māori, rangatiratanga can embody the authority of a rangatira but also
that of the people, which, in the context
of this review, includes whānau
and hapū. It involves the exercise of mana in accordance with and qualified
by tikanga
and its associated kawa and, through tikanga, the managing of a
dynamic interface between people, their environment and the non-material
world.23
- 2.19 It is the
substance of this rangatiratanga that needs to be upheld and not interfered with
through the guarantee of tino rangatiratanga.
In effect, te Tiriti envisages the
co-existence of different but intersecting systems of political and legal
authority.24
- 2.20 Tino
rangatiratanga is exercised within te ao Māori every day and independently
of state law, in accordance with tikanga
Māori. However, in some
situations, consistency with te Tiriti may require that provision for the
exercise of tino rangatiratanga
be made in legislation. Implicit in this is that
te Tiriti requires careful thought about what responsible kāwanatanga
involves.
- It
has long been acknowledged that most of the more than 500 rangatira who signed
the Treaty signed te Tiriti not the English text,
following their debate and
discussion in Māori. While some signed the English sheet, most if not all
of them would have relied
on the oral explanation of the Treaty’s terms in
Māori, which likely reflected te Tiriti. See Te Rōpū Whakamana
i
te Tiriti o Waitangi | Waitangi Tribunal Te Mana Whatu Ahuru: Report on Te
Rohe Pōtae Claims – Parts I and II (Wai 898, 2018) at 130,
136, 139–140 and 146. See also Te Rōpū Whakamana i te Tiriti o
Waitangi | Waitangi Tribunal
He Whakaputanga me te Tiriti | The
Declaration and the Treaty: The Report on Stage 1 of the Te Paparahi o
Te Raki Inquiry (Wai 1040, 2014) at 522; Carwyn Jones New Treaty, New
Tradition: Reconciling New Zealand and Māori Law (Victoria
University Press, Wellington, 2016) at 7.
- Consistent
with the contra proferentem rule of the law of treaties, where there is
ambiguity, a provision should be construed against the party that drafted or
proposed
the relevant provision. See Te Rōpū Whakamana i te Tiriti o
Waitangi | Waitangi Tribunal Report of The Waitangi Tribunal on The Orakei
Claim (Wai 9, 1987) at 180.
- Te
Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Hauora:
Report on Stage One of the Health Services and Outcomes Kaupapa Inquiry (Wai
2575, 2019) at 28. See also Te Rōpū Whakamana i te Tiriti o
Waitangi | Waitangi Tribunal Tū Mai te Rangi! Report on the Crown and
Disproportionate Reoffending Rates (Wai 2540, 2017) at 21; and Te
Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Whaia te
Mana Motuhake | In Pursuit of Mana Motuhake: Report on the Māori
Community Development Act Claim (Wai 2417, 2015) at 26.
- New
Zealand Māori Council Kaupapa: te wāhanga tuatahi (New Zealand
Māori Council, Wellington, 1983) at 5–6; Hirini Moko Mead Tikanga
Māori: Living by Māori Values (rev ed, Huia Publishers,
Wellington, 2016) at 41–42 and 229; and Tāhū o te Ture |
Ministry of Justice He Hīnātore ki te Ao Māori: A Glimpse into
the Māori World – Māori Perspectives on Justice (March 2001)
at 36–38. See also the discussion in He Whakaaro Here Whakaumu Mō
Aotearoa: The Report of Matike Mai Aotearoa – The Independent Working
Group on Constitutional
Transformation (January 2016) at 34.
- See
discussion in Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi
Tribunal He Whakaputanga me te Tiriti | The Declaration and the
Treaty: The Report on Stage 1 of the Te Paparahi o Te Raki Inquiry (Wai
1040, 2014) at 524. Carwyn Jones New Treaty, New Tradition: Reconciling New
Zealand and Māori Law (Victoria University Press, Wellington, 2016) at
42.
- 2.21 This
approach to articles 1 and 2 of te Tiriti allows an end to debating the
different texts in an effort to understand what
was exchanged between Māori
and the British and how the wording of each of the texts should be qualified. 25 Instead, it focuses on the
relationship between tino rangatiratanga and kāwanatanga and allows us to
ask how responsible kāwanatanga
might be exercised in specific contexts,
including how the exercise of tino rangatiratanga might be
facilitated.
The principles
- 2.22 The
Treaty principles have become important tools in understanding the Treaty and
have an extensive history in the Tribunal and
the courts.
- 2.23 The
Tribunal has explained that, although its statutory role is to inquire into the
consistency of the Crown’s acts and
omissions against the Treaty
principles, this “does not mean that the terms [of the Treaty] can be
negated or reduced”.
26
Rather, the principles “enlarge the terms, enabling the Treaty to be
applied in situations that were not foreseen or discussed
at the time”.27 However, it should be noted
that some regard the Treaty principles as distorting or diminishing the clear
terms of the Māori
text.28
- 2.24 Given the
Treaty’s constitutional significance, in the absence of clear words to
the contrary, the courts will presume
that Parliament intends to legislate in a
manner that is consistent with the principles of the Treaty and will interpret
legislation
accordingly.29
- 2.25 In several
landmark cases, the courts have identified three broad Treaty principles: the
principles of partnership, active protection
and redress. 30 However, the nature of the
Treaty as a living document means that the Treaty principles are constantly
evolving as the Treaty is applied
to new issues and situations.31 Neither the courts nor the
Tribunal have sought to produce a definitive list of Treaty principles.32 As te Kōti Pīra |
the Court of Appeal has observed, “[t]he Treaty obligations are ongoing.
They will evolve from
generation to generation as conditions change”. 33 Consequently, over time, other
principles and duties associated with these three broad principles have been
developed by the Tribunal
and the courts.
25 Article 3 in both the
Māori and English texts conveys an undertaking of similar effect.
26 Te Rōpū Whakamana i te
Tiriti o Waitangi | Waitangi Tribunal Muriwhenua Land Report (Wai 45,
1997) at 385–386.
27 Te Rōpū Whakamana i te
Tiriti o Waitangi | Waitangi Tribunal Muriwhenua Land Report (Wai 45,
1997) at 386.
- For
example, see Ani Mikaere Colonising Myths: Māori Realities – He
Rukuruku Whakaaro (Huia Publishers, Wellington, 2011) at 263–264. See
also the discussion in Te Rōpū Whakamana i te Tiriti o Waitangi
|
Waitangi Tribunal He Whakaputanga me te Tiriti | The Declaration and
the Treaty: The Report on Stage 1 of the Te Paparahi o Te Raki Inquiry (Wai
1040, 2014) at 348 onwards for an in-depth discussion of the
texts.
29 New Zealand Maori
Council v Attorney-General [1987] 1 NZLR 641 (CA) [Lands] at
655–656 per Cooke P.
- See
New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641 (CA)
[Lands]; New Zealand Maori Council v Attorney-General [1994] 1
NZLR 513 (PC) [Broadcasting Assets]; and Te Runanga o Wharekauri
Rekohu Inc v Attorney- General [1992] NZCA 503; [1993] 2 NZLR 301 (CA).
- Te
Puni Kōkiri | Ministry of Māori Development He Tirohanga ō
Kawa ki te Tiriti o Waitangi: A Guide to the Principles of the Treaty of
Waitangi as expressed by the Courts and
the Waitangi Tribunal (2001) at
77.
- Te
Puni Kōkiri | Ministry of Māori Development He Tirohanga ō
Kawa ki te Tiriti o Waitangi: A Guide to the Principles of the Treaty of
Waitangi as expressed by the Courts and
the Waitangi Tribunal (2001) at
77.
33 Te Runanga o
Muriwhenua Inc v Attorney-General [1990] NZCA 7; [1990] 2 NZLR 641 (CA) at 656 per Cooke
P.
- 2.26 In our
view, this review engages in particular the principles of partnership, active
protection, and “options”
(Māori having choices or options
available to them).
Partnership
- 2.27 The
principle of partnership requires Māori participation in decision-making
that impacts on the lives of Māori. The
starting point should be shared
decision-making, but the form partnership takes will depend on what the rights
and interests of the
Treaty partners require in the circumstances.34 Both partners should
participate in identifying the nature and extent of the rights and interests
engaged and how they may be protected
through the partnership.35
- 2.28 The Crown
is subject to a related duty to make informed decisions on matters that affect
Māori interests.36 This
requires the Crown to be fully informed of the rights and interests of
Māori, other New Zealanders and the nation as a whole
as well as the impact
of its proposed course of action on these rights and interests so that those
interests may be protected and
balanced appropriately (although a conflict
between the interests of Māori and others should not be presumed). 37 The Tribunal has observed
that, in making decisions on matters that may impact on the exercise of
rangatiratanga over taonga, it is
essential that the Crown engage with
Māori in order to fully understand the nature of those interests.38
Active protection
- 2.29 The
principle of active protection emerges from the relationship between
kāwanatanga and tino rangatiratanga in articles
1 and 2 of te Tiriti.39 It encompasses an obligation
to
- See
Te Aka Matua o te Ture | Law Commission The Treaty of Waitangi and Maori
Fisheries | Mataitai: Nga Tikanga Maori me te Tiriti o Waitangi
(NZLC PP9, 1989) at [2.12], [3.9]–[3.11] and [14.12]; and Te Aka Matua
o te Ture | Law Commission Māori Custom and Values in New Zealand Law
(NZLC SP9, 2001) at 80.
- Te
Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Ko
Aotearoa Tēnei: A Report into Claims Concerning New Zealand Law and Policy
Affecting Māori Culture and Identity –
Te Taumata Tuarua (Wai
262, 2011) at 341. See also New Zealand Maori Council v Attorney-General
[1987] 1 NZLR 641 (CA) [Lands] at 667 per Cooke P and Te
Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal The
Report on the Crown’s Review of the Plant Variety Rights Regime: Stage 2
of the Trans-Pacific Partnership Agreement Claims
(Wai 2522, 2020) at
12.
- This
duty is also engaged by the principle of active protection discussed below. See
Te Rōpū Whakamana i te Tiriti o Waitangi
| Waitangi Tribunal The
Whakatōhea Mandate Inquiry Report (Wai 2662, 2018) at 21–22.
- Te
Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal He Aha
i Pērā Ai? The Māori Prisoners’ Voting Report
(Wai 2870, 2020) at 12. See also New Zealand Maori Council v
Attorney-General [1987] 1 NZLR 641 (CA) [Lands] at 683 per
Richardson J; Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi
Tribunal Tū Mai te Rangi! Report on the Crown and Disproportionate
Reoffending Rates (Wai 2540, 2017) at 23; Te Rōpū Whakamana i te
Tiriti o Waitangi | Waitangi Tribunal Ko Aotearoa Tēnei: A Report into
Claims Concerning New Zealand Law and Policy Affecting Māori Culture and
Identity –
Te Taumata Tuarua (Wai 262, 2011) at 86; and Te
Rōpū Whakamana i te Tiriti o Waitangi | Waitangi
Tribunal
Ko Aotearoa Tēnei: A Report into Claims Concerning
New Zealand Law and Policy Affecting Māori Culture and Identity
– Te Taumata Tuatahi (Wai 262, 2011) at 237.
- Te
Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal The
Ngawha Geothermal Resource Report 1993 (Wai 304, 1993) at
101–102.
- Te
Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Report on
the Crown’s Review of the Plant Variety Rights Regime: Stage 2 of the
Trans-Pacific Partnership Agreement Claims
(Wai 2522, 2020) at 13; and
Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal He
Aha i Pērā Ai? The Māori Prisoners’ Voting Report (Wai
2870, 2020) at 12. See also Te Rōpū Whakamana i te Tiriti o
Waitangi | Waitangi Tribunal Tū Mai te Rangi! Report on the Crown and
Disproportionate Reoffending Rates (Wai 2540, 2017) at 26. In the English
text of the Treaty, it is article 2 that provides
actively protect tino rangatiratanga, including the exercise of authority in
accordance with tikanga and over taonga.40 As discussed in relation to
the principle of partnership and the associated duty of informed
decision-making, to ascertain what the
obligation of active protection requires
in the given circumstances, the Crown must inform itself of the nature of the
Māori
rights and interests engaged.41 In this respect, the Tribunal
has observed:42
The Crown
obligation actively to protect Maori Treaty rights cannot be fulfilled in the
absence of a full appreciation of the nature
of the taonga including its
spiritual and cultural dimensions. This can only be gained from those having
rangatiratanga over the
taonga.
Options
- 2.30 This
principle is concerned with the choice open to Māori.43 Article 2 of te Tiriti
guarantees tino rangatiratanga to Māori. Article 3 of both texts have the
effect of promising Māori
the protection of the Crown together with the
same rights and duties of citizenship of all New Zealanders. Māori are free
to
pursue either or both of these.44 This assures to Māori
the right to choose their social and cultural path.45 The Tribunal has described
the choice as one to:46
...
develop along customary lines and from a traditional base, or to assimilate
into a new way. Inferentially it offered a third
alternative, to walk in two
worlds.
- 2.31 The options
open to Māori, as we see them, are essentially concerned with the decisions
Māori make every day to live
in and engage with both te ao Māori and
te ao Pākehā.
that the Crown “guarantees” Māori the continued
possession of their lands and other resources. Article 3 of both
texts also
includes an undertaking by the Crown to protect Māori rights and
interests.
- Te
Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal He Aha i
Pērā Ai? The Māori Prisoners’ Voting Report (Wai 2870,
2020) at 13; Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi
Tribunal The Report on the Crown’s Review of the Plant Variety Rights
Regime: Stage 2 of the Trans-Pacific Partnership Agreement Claims
(Wai 2522,
2020) at 13; and Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi
Tribunal The Ngāpuhi Mandate Inquiry Report (Wai 2490, 2015) at
30–31.
- Te
Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal He Aha
i Pērā Ai? The Māori Prisoners’ Voting Report
(Wai 2870, 2020) at 13; and Te Rōpū Whakamana i te Tiriti o
Waitangi | Waitangi Tribunal The Ngawha Geothermal Resource Report 1993
(Wai 304, 1993) at 101–102. See also Te Rōpū Whakamana i te
Tiriti o Waitangi | Waitangi Tribunal Tū Mai te Rangi! Report on the
Crown and Disproportionate Reoffending Rates (Wai 2540, 2017) at 22.
- Te
Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal The
Ngawha Geothermal Resource Report 1993 (Wai 304, 1993) at 102. See also Te
Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Ko
Aotearoa Tēnei: A Report into Claims Concerning New Zealand Law and Policy
Affecting Māori Culture and Identity –
Te Taumata Tuatahi (Wai
262, 2011) at 188, where the Tribunal emphasised that Māori are the
kaitiaki of their own mātauranga and that the Crown
should not assume that
role for itself, but “[r]ather, the Crown must support Māori
leadership of the effort to preserve
and transmit mātauranga Māori,
with both parties acting as partners in a joint venture”.
- Te
Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal The
Ngai Tahu Sea Fisheries Report 1992 (Wai 27, 1992) at 274.
- Te
Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal The
Ngai Tahu Sea Fisheries Report 1992 (Wai 27, 1992) at 274.
- Te
Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal The
Napier Hospital and Health Services Report (Wai 692, 2001) at
65.
46 Te Rōpū
Whakamana o Te Tiriti o Waitangi | Waitangi Tribunal Muriwhenua Fishing
Report (Wai 22, 1988) at 195.
- 2.32 The nature
of the interest in the matter at issue may affect how this principle will be
given effect. However, responsible kāwanatanga
should ensure that options
remain open to Māori as genuinely as is possible.47
Implications of the Treaty for this review
- 2.33 Given
the significance of succession in te ao Māori, the implications of the
Treaty in this review are that it engages the
guarantee of “tino
rangatiratanga o ... o ratou taonga katoa” (chieftainship over all things
valued or treasured) and
respect for Māori customs and law.48 We suggest that responsible
kāwanatanga requires appropriate facilitation of the exercise of tino
rangatiratanga by Māori,
and this then requires careful thought about the
relationship between tikanga and state law in relation to succession.
- 2.34 Our
preliminary consultation with Māori emphasised the importance of letting
Māori be the Māori they want to
be. Our approach to the review
therefore seeks to:
(a) involve Māori participation in
identifying the nature and extent of the rights and interests engaged;
(b) understand Māori rights and interests; and
(c) consider and consult with Māori on how those rights and interests
are best recognised in state law or otherwise.
- 2.35 To provide
further context for considering these questions, we outline below aspects of
tikanga Māori relevant to succession.
TIKANGA
- 2.36 For
present purposes, tikanga is constitutionally significant to the development of
the law in four mutually reinforcing
respects:
(a) First, as an
independent source of rights and obligations in te ao Māori and the first
law of Aotearoa.49
(b) Second, in terms of the Treaty rights and obligations that pertain to
tikanga.
- Te
Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Ko
Aotearoa Tēnei: A Report into Claims Concerning New Zealand Law and Policy
Affecting Māori Culture and Identity –
Te Taumata Tuatahi (Wai
262, 2011) at 24, where the Tribunal observed in that context that
“[a]fter 170 years during which Māori have been
socially, culturally,
and economically swamped, it will no longer be possible to deliver tino
rangatiratanga in the sense of full
authority over all taonga Māori.”
See also the discussion at 269.
- In
Te Aka Matua o te Ture | Law Commission The Taking into Account of Te Ao
Māori in Relation to Reform of the Law of Succession (NZLC MP6, 1997)
at 9, Professor Hohepa said “[t]he right to legal autonomy and to control
of succession can be said to be a
collective possession as well as
taonga.”
- See
Ani Mikaere “The Treaty of Waitangi and Recognition of Tikanga
Māori” in Michael Belgrave, Merata Kawharu and
David V Williams (eds)
Waitangi Revisited: Perspectives on the Treaty of Waitangi (2nd ed,
Oxford University Press, Auckland, 2005) 331 and 334; and Joseph Williams
“Lex Aotearoa: An Heroic Attempt to Map the
Māori Dimension in Modern
New Zealand Law” [2013] WkoLawRw 2; (2013) 21 Waikato L Rev 1 at
2–5.
(c) Third, where tikanga values comprise a source of the New
Zealand common law,50
or have been integrated into law by statutory reference.51
(d) Fourth, to give
effect to Aotearoa New Zealand’s international obligations in relation
to Māori as indigenous people,
including under the UNDRIP.52
- 2.37 Professor
Patu Hohepa emphasised the need to revisit tikanga Māori in order that its
part in succession law reform is understood.
He explained the centrality of
tikanga in the following terms:53
E kore e whakawaia
E whakangaro i te tikanga Kei hiiritia e te ture
Waiho ki te ture tangata
- 2.38 Professor
Hohepa observed that while surface changes may occur to things such as land
tenure or social structures, they do so
without sacrificing deep cultural
principles because they have the underpinnings of cultural strength and
continuity.54
- As
recognised by te Kōti Mana Nui | the Supreme Court in Takamore v Clarke
[2012] NZSC 116, [2013] 2 NZLR 733 at [94]–[95]. In Ellis v R
[2020] NZSC 89, submissions were sought on the application of tikanga on
the question of whether the Court has jurisdiction to hear an appeal against
conviction after the death of the appellant. The Court issued its judgment
allowing the appeal to proceed, but reasons for that decision
are to be provided
with the judgment on the substantive appeal: at [5]. See also Ngawaka v
Ngāti Rehua-Ngātiwai ki Aotea Trust Board (No 2) [2021] NZHC 291
at [43]–[47] and [58].
- Statutes
referencing tikanga include the Oranga Tamariki Act 1989 (see s 2 definitions of
“tikanga Māori” and “mana
tamaiti (tamariki)”);
Resource Management Act 1991; and Taumata Arowai–the Water Services
Regulator Act 2020. See also
Christian N Whata “Evolution of legal issues
facing Maori” (paper presented to Maori Legal Issues Conference, Legal
Research
Foundation, Auckland, 29 November 2013).
- Aotearoa
New Zealand affirmed the United Nations Declaration on the Rights of Indigenous
Peoples (UNDRIP) GA Res 61/295 (2007) in
2010. The UNDRIP recognises the
importance of protecting the collective rights of indigenous peoples and
addresses the rights to
self-determination, preservation of culture and
institutions, participation in decision-making and consultation, and rights to
lands
and resources. As a declaration rather than a convention, the UNDRIP does
not have legally binding force attached to it in international
law. However, the
UNDRIP is widely viewed as not creating new
rights, but rather
elaborating on internationally recognised human rights as they apply to
indigenous peoples and individuals, thus
in this way having a binding effect:
see Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal
Whaia te Mana Motuhake | In Pursuit of Mana Motuhake: Report on the
Māori Community Development Act Claim (Wai 2417, 2015) at 34–35,
38–39 and 40–44); Te Rōpū Whakamana | Waitangi Tribunal
Ko Aotearoa Tēnei: A Report into Claims Concerning New Zealand Law and
Policy Affecting Maori Culture and Identity — Te
Taumata Tuatahi (Wai
262, 2011) at 42 and 233; and Claire Charters “The UN Declaration on the
Rights of Indigenous Peoples in New Zealand Courts:
A Case for Cautious
Optimism” in UNDRIP Implementation: Comparative Approaches, Indigenous
Voices from CANZUS – Special Report (Centre for International
Governance Innovation, 2020) 43 at 48–50. This is reflected in the right
to self-determination in
art 3 being characterised as “essential to the
enjoyment of all human rights”: Melissa Castan “DRIP Feed: The Slow
Reconstruction of Self-determination for Indigenous Peoples” in Sarah
Joseph and Adam McBeth (eds) Research Handbook on International Human Rights
Law (Edward Elgar Publishing, Cheltenham, 2010) 492 at 499; see also Office
of the High Commissioner for Human Rights CCPR General Comment No 12: Article
1 (Right to Self-determination) The Right to Self-determination of Peoples
(13 March 1984).
- Te
Aka Matua o te Ture | Law Commission The Taking into Account of Te Ao Maori
in Relation to Reform of the Law of Succession (NZLC MP6, 1996) at 16.
Professor Hohepa explains this as stating that tikanga should never be watered
down or lost, otherwise it
would be codified in law and left to languish in
human-created laws.
- Te
Aka Matua o te Ture | Law Commission The Taking into Account of Te Ao Maori
in Relation to Reform of the Law of Succession (NZLC MP6, 1996) at
17.
- 2.39 To put our
discussion of tikanga relating to succession in context, we first acknowledge
the place of death in te ao Māori.
On the topic of Māori views on
death, Mead writes that:55
... human beings are
transient and are not permanent features of the social landscape ... The
condition of human life is compared
with the apparent permanence of the land or
of a mountain range ... a majority of Māori live happily with the images of
their
ancestors all around them in a carved meeting house, with the wairua of
the ancestors above them, with the bones of their ancestors
at the burial ground
near by and surrounded by their living relatives. All are part of the reality of
being Māori. All elements
are part of the whole and death itself is not a
frightening experience ... It is manageable because we have tikanga to guide us
and
help us through a crisis and a reality of life.
- 2.40 In
Māori historical accounts, Hine-nui-te-pō is known as the kāwai
tupuna of all that go to Rarohenga, their final
resting place.56 Hine-nui-te-pō was
formerly known as Hinetītama, the daughter of Tāne. She became his
wife without the knowledge of
her whakapapa, and when she discovered the truth
she was ashamed and fled to Rarohenga. She vowed to look after all
Tāne’s
descendants, of which humans are a part, once their time with
him had ended.
- 2.41 In te ao
Māori, everything has a mauri that originates from the atua Māori.
Mead describes mauri as the “spark
of life, the active component which
indicates the person is alive”.57
Mauri has also been described as the activity that moves within all people.58 When a person dies, the mauri
that they are born with disappears.59 The wairua, however, remains
and may journey to Rarohenga to be with Hine-nui-te-pō or remain close to
the body.60
- 2.42 One
historical account of Māui-tikitiki-a-Taranga explains human mortality.
Māui attempted to cheat death by entering
Hine-nui-te-pō through the
birth-way while she slept, in order to reverse the birth process. However,
his pet tīwaiwaka
woke Hine-nui-te- pō, and she killed Māui
instead. As a result of Māui’s failure to find the source of life,
all humans inevitably die.
- Hirini
Moko Mead Tikanga Māori: Living by Māori Values (rev ed, Huia
Publishers, Wellington, 2016) at 155–157; see also Harry Dansey “A
View of Death” in Michael King
(ed) Te Ao
Hurihuri: Aspects of Maoritanga (Reed Publishing, Auckland, 1992) 105.
- Pūrākau
(Māori stories) outlined in this paper derive from and belong to Māori
through oral tradition. We have
chosen not to cite specific sources for these
stories for that
reason.
57 Hirini Moko Mead
Tikanga Māori: Living by Māori Values (rev ed, Huia Publishers,
Wellington, 2016) at 57.
58 Elsdon Best “Spiritual
Concepts of the Maori: Part II” (1901) 10 JPS 1 at 3–4.
59 Hirini Moko Mead Tikanga Māori: Living by Māori
Values (rev ed, Huia Publishers, Wellington, 2016) at 156.
- Wairua
is usually translated as “soul” or “spirit”. It is an
expression of forces beyond those of this world:
see Tāhū o te Ture |
Ministry of Justice He Hīnātore ki te Ao Māori: A Glimpse into
the Māori World – Māori Perspectives on
Justice (March 2001) at 184. Mead
describes various beliefs in the journey the wairua takes after the person has
died: see Hirini Moko Mead
Tikanga Māori: Living by Māori Values
(rev ed, Huia Publishers, Wellington, 2016) at
59–63.
Tikanga relevant to succession
- 2.43 Succession
in te ao Māori reflects the importance of whānau for Māori. Kin
relationships together with their inherent
reciprocal obligations provide the
overall context for understanding succession from an ao Māori
perspective.61
- 2.44 Understanding
the nature of the relationships between Māori and the tangible and
intangible is also important. Certain tangible
items may be more important to
the collective than the individual. An indicator of what might fall into this
category can be found
in te reo Māori, where the relationship between one
thing and another is indicated by the pre-posed particles ‘o’
or
‘a’ (of which there is no equivalent in English).62 When it comes to possessions,
‘o’ is generally used when the possessor is passive, subordinate
or inferior to that which
is possessed. In contrast, ‘a’ is used
when the possessor is active, dominant or superior to that which is possessed.
These rules do not cover the broad range of relationships to which
‘a’ and ‘o’ apply though. For instance,
qualities,
feelings, clothing and parts of a wider whole are generally pre-posed by
‘o’, even though the possessor is
not necessarily passive,
subordinate or inferior to these things.
- 2.45 To
illustrate the difference between ‘a’ and ‘o’, land and
taonga will generally be pre- posed by ‘o’,
but something like a pen
will generally be pre-posed by ‘a’. It is clear from these examples
that things pre-posed by
‘o’ are not only held by the possessor
passively but are also imbued with tapu, ihi and mana. This may be indicative
of
when an item may have more importance to the collective than the
individual.
- 2.46 Succession
in te ao Māori is also concerned with the intangible. For example, even
though a Māori person is born with
mana derived from their tūpuna,
they may inherit additional mana and the rights and obligations associated with
that mana from
their parents when their parents die. 63 In contrast, succession in te
ao Pākehā is largely concerned with tangibles. This reflects the idea
of succession law being
a necessary extension of the broader ideas of property
and ownership.64 We do not
intend to consider how Māori might succeed to the intangible in this
review, although we observe that intangible rights
and obligations handed down
through succession may affect succession to tangibles.
- 2.47 The
following discussion does not seek to be a comprehensive description of tikanga
relevant to succession law. It is our attempt
to identify principles that must
be understood in order to consider an ao Māori perspective. Additionally,
Māori, both
individually and
- For
a broad-ranging discussion of social organisation among Māori, see Te Rangi
Hiroa | Peter Buck The Coming of the Maori (Whitcombe and Tombs Ltd,
Christchurch, 1949) at 331.
- This
description is based upon Professor Patu Hohepa’s writing in Te Aka Matua
o te Ture | Law Commission The Taking into Account of Te Ao Maori in Relation
to Reform of the Law of Succession (NZLC MP6, 1996) at 25. We received
feedback that there are varying opinions as to what exactly the ‘a’
and ‘o’
categories mean, and that the description we propose here
is not universally
accepted.
63 We discuss mana,
utu and kaitiakitanga below.
64 See our discussion in Chapter 1.
collectively, interpret tikanga in their own ways and place varying degrees of
importance on particular values.65 The values:66
... do not represent a
hierarchy of ethics, but rather a koru, or a spiral, of ethics. They are all
part of a continuum yet contain
an identifiable core.
Tika
- 2.48 Professor
Hohepa has described tika as the “major principle” that overarches
and guides formalities and practice
in Māori society.67 Tika has a range of meaning
from “right and proper, true, honest, just, personally and culturally
correct or proper” to
“upright”. 68 It forms the basis of the
word tikanga. The practice of a particular tikanga therefore needs to be
correct and right, or tika.69
Whanaungatanga
- 2.49 Whanaungatanga
has been described as “the glue that held, and still holds, the system
together”.70 It has
been said to be:71
... the
fundamental law of the maintenance of properly tended relationships. The
reach of this concept does not stop at the boundaries
of what we might call law,
or even for that matter, human relationships. It is also the key underlying
cultural (and legal) metaphor
informing human relationships with the physical
world – flora, fauna, and physical resources
– and the spiritual world – the gods and ancestors.
- 2.50 Whanaungatanga
includes the ideas that, in te ao Māori, relationships among people and
with the natural and spiritual worlds
are fundamental to communal well-being,
and all individuals owe certain responsibilities to the collective.72
- 2.51 The idea of
belonging, which underpins the Māori perspective on succession, has its
basis in whanaungatanga principles.
Harry Dansey writes that the Māori
attitude to death is influenced by the depth of feeling for relations. Not only
is the notion
of family extended but so are the rights and responsibilities of
relationship.73 Rights to
belong to the hapū and participate in resources are crucial from a
whanaungatanga perspective and help promote a sense
of
belonging.
65 Te Aka Matua o te Ture
| Law Commission Māori Custom and Values in New Zealand Law (NZLC
SP9, 2001) at 28.
66 Te Aka Matua o te Ture | Law
Commission Māori Custom and Values in New Zealand Law (NZLC SP9,
2001) at 29.
- Te
Aka Matua o te Ture | Law Commission The Taking into Account of Te Ao Maori
in Relation to Reform of the Law of Succession (NZLC MP6, 1996) at 16.
- Te
Aka Matua o te Ture | Law Commission The Taking into Account of Te Ao Maori
in Relation to Reform of the Law of Succession (NZLC MP6, 1996) at
16.
69 Hirini Moko Mead
Tikanga Māori: Living by Māori Values (rev ed, Huia Publishers,
Wellington, 2016) at 29.
- Joseph
Williams “Lex Aotearoa: An Heroic Attempt to Map the Māori
Dimension in Modern New Zealand Law” [2013] WkoLawRw 2; (2013) 21 Waikato L Rev 1 at
4.
- Joseph
Williams “Lex Aotearoa: An Heroic Attempt to Map the Māori
Dimension in Modern New Zealand Law” [2013] WkoLawRw 2; (2013) 21 Waikato L Rev 1 at
4.
72 Te Aka Matua o te Ture |
Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9,
2001) at 30–31.
- Harry
Dansey “A View of Death” in Michael King (ed) Te Ao Hurihuri:
Aspects of Maoritanga (Reed Publishing, Auckland, 1992) 105 at
109.
Whakapapa
- 2.52 Māori
history contains a detailed account of Māori origins from
Papatūānuku and Ranginui to Tāne-mahuta,
Tangaroa,
Tūmatauenga, Haumia-tiketike, Tāwhiri-mātea, Rongo and their
siblings across many generations and significant
figures and stories, to the
tangata whenua of today.74
This detailed history shows the power and importance of whakapapa to the
Māori worldview.
- 2.53 Whakapapa
literally means “to place in layers”.75 It has been described by Sir
Apirana Ngata as:76
... the
process of laying one thing upon another. If you visualise the foundation
ancestors as the first generation, the next and
succeeding ancestors are placed
on them in ordered layers.
- 2.54 Whakapapa
therefore details the nature of the relationships between all things.77 Because all things come
from Papatūānuku and Ranginui, all things are connected through
whakapapa.78
- 2.55 Whakapapa
is crucial to succession for Māori because it underpins connections to
whānau, tribal groups and whenua.79 We have heard that a primary
function of succession for Māori is to maintain whakapapa connections to
their whenua, whānau,
tūpuna and atua.
Mana
- 2.56 In
a narrow sense, mana can be defined as “the integrity of a person or
object”.80 In a
wider sense, it is a measure of all things that is gathered from
“ancestral and spiritual inheritance, prestige, power,
recognition,
efficacy, influence, authority and personal ability”.81
- Te
Aka Matua o te Ture | Law Commission The Taking into Account of Te Ao Maori
in Relation to Reform of the Law of Succession (NZLC MP6, 1996) at
13–15.
- Richard
Benton, Alex Frame and Paul Meredith (eds) Te Mātāpunenga: A
Compendium of References to the Concepts and Institutions of Māori
Customary Law (Victoria University Press, Wellington, 2013) at 504.
- Apirana
T Ngata Rauru-nui-ā-Toi Lectures and Ngati Kahungunu Origins
(Victoria University of Wellington, Wellington, 1972) at 6, cited in Joseph
Selwyn Te Rito “Whakapapa: A framework for understanding
identity”
[2007]
(2) MAI Review 1 at 1.
- Te
Aka Matua o te Ture | Law Commission Māori Custom and Values in New
Zealand Law (NZLC SP9, 2001) at 30. See also Nin Tomas “Maori
Concepts of Rangatiratanga, Kaitiakitanga, the Environment, and Property
Rights” in David Grinlinton and Prue Taylor (eds) Property Rights and
Sustainability: The Evolution of Property Rights to Meet Ecological Challenges
(Martinus Nijhoff Publishers, Leiden, 2011) 219 at
228.
78 Te Rōpū
Whakamana i te Tiriti o Waitangi | Waitangi Tribunal The Whanganui River
Report (Wai 167, 1999) at 39.
- Te
Aka Matua o te Ture | Law Commission The Taking into Account of Te Ao Maori
in Relation to Reform of the Law of Succession (NZLC MP6, 1996) at 11.
- Te
Aka Matua o te Ture | Law Commission The Taking into Account of Te Ao Maori
in Relation to Reform of the Law of Succession (NZLC MP6, 1996) at
18–19.
- Te
Aka Matua o te Ture | Law Commission The Taking into Account of Te Ao Maori
in Relation to Reform of the Law of Succession (NZLC MP6, 1996) at
18.
- 2.57 It is often
said there are three aspects of personal mana:82
- Mana atua
— mana that is derived from the atua Māori (Māori gods).
- Mana tūpuna
— ascribed mana from one’s whakapapa line.
- Mana tangata
— mana from one’s personal and leadership qualities.
- 2.58 Although
these aspects to mana are distinct (and reflect the different ways mana may
manifest itself) it is said that the source
of all mana is the atua
Māori.83 The
whakataukī “Ko te tapu te mana o ngā kāwai
tūpuna” (“tapu is the mana of the kāwai
tūpuna”) demonstrates that mana shares a very strong positive
connection with tapu.84
- 2.59 Mana is
important to succession for two reasons. What happens after death can have an
impact on the mana of the deceased and
the collective.85 Mana tūpuna demonstrates
the importance of the mana of those who have died to those who are living today.
The mana of the deceased
can also impact on how closely their wishes are
followed after death.
- 2.60 Associate
Professor Khylee Quince has observed that, in daily life, mana supported the
institution of tapu as the basis of property
entitlements. Quince states:86
Personal property rights
were acquired through the extension of personal tapu to objects. The degree of
tapu signified the degree
of entitlement to one person and the degree of
prohibition against others. Mana was the means by which an individual could do
this.
Tapu and noa
- 2.61 Tapu
is a principle in te ao Māori that acts as a “corrective and coherent
power”. 87
Professor Hohepa has defined it as:88
... the essence of
sanctity, cultural protection, sacredness, set apartness. It is not only a
possible source of protection for all
things, it also has a ‘potential for
power’.
- 2.62 Similar to
mana, tapu can be traced to the tūpuna, then to the atua Māori, and
then to Ranginui and Papatūānuku.89 This gives rise to an
“intrinsic tapu” that all people, places and things possess by
virtue of their connection to the
atua Māori.90 A hara (violation or offence)
against tapu demanded utu (reciprocity, retribution) for the hara. Because
of
82 Te Aka Matua o te Ture
| Law Commission Māori Custom and Values in New Zealand Law (NZLC
SP9, 2001) at 33.
- Māori
Marsden “God, Man and Universe” in Michael King (ed) Te Ao
Hurihuri: The World Moves on: Aspects of Maoritanga (Hicks Smith,
Wellington, 1975) at 191 and 194.
- Tāhū
o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A
Glimpse into the Māori World – Māori Perspectives on Justice
(March 2001) at
51.
85 Ellis v R [2020]
NZSC Trans 19 at 5, 8, 11 and 20.
- Khylee
Quince “Māori Disputes and Their Resolution” in Peter Spiller
(ed) Dispute Resolution in New Zealand (2nd ed, Oxford University Press,
South Melbourne, 2007) 256 at 262.
- Tāhū
o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A
Glimpse into the Māori World – Māori Perspectives on Justice
(March 2001) at 59.
- Te
Aka Matua o te Ture | Law Commission The Taking into Account of Te Ao Maori
in Relation to Reform of the Law of Succession (NZLC MP6, 1996) at
18.
89 Hirini Moko Mead
Tikanga Māori: Living by Māori Values (rev ed, Huia Publishers,
Wellington, 2016) at 50.
- Tāhū
o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A
Glimpse into the Māori World – Māori Perspectives on Justice
(March 2001) at 52.
these consequences, tapu is sometimes seen as a form of social control based on
the avoidance of risk.91
- 2.63 If tapu has
the “potential for power”, then noa acts as a counter or antidote to
that: it values the importance of
ordinary, everyday human activity.92 However, it is not useful to
think of noa as the opposite of tapu or the absence of tapu. Rather, noa
indicates that, following an
incursion on tapu, a balance has been reached, a
crisis is over and things are back to normal again.93 One way to think of tapu and
noa might be as complementary opposites operating on a spiritual level to
restore balance.
- 2.64 Tapu is
relevant to succession because death and things closely associated with death
are highly tapu.94 Taonga and
other items that were in possession of the deceased may be tapu by association
or have their own intrinsic tapu by association
with the atua Māori.
Whakapapa is intrinsically tapu because it connects people directly to the atua
Māori and also to
their mate (dead). Maintaining whakapapa connections and
ensuring taonga and other items are treated appropriately are therefore
vitally
important, and sanctions may follow if the tapu of whakapapa is
breached.
Utu
- 2.65 Utu
establishes principles and protocols in which relationships are created and
maintained. It can be thought of as “compensation,
revenge, or
reciprocity”. 95 Utu is
relevant to:96
... both the
positive and negative aspects of Māori life governing relationships within
Māori society. It was a reciprocation
of both positive and negative deeds
from one person to another. Utu was a means of seeking, maintaining and
restoring harmony and
balance in Māori society and relationships.
- 2.66 Utu is
closely linked with mana and tapu. Where utu is sought, the take (cause) was
usually a breach of tapu or an increase or
decrease in mana. 97 The extent and form of utu
depends on the circumstances, making it highly contextual.
- 2.67 Utu can be
linked to the analytical framework of take–utu–ea. The framework
measures breaches of tikanga that require
certain action to be taken in order to
resolve the matter.98
- Mason
Durie “The Application of Tapu and Noa to Risk, Safety, and Health”
(paper presented to Challenges, Choices and
Strategies, Mental Health Conference
2000, Wellington, 16 November 2000) at 3–4, cited in Te Aka Matua o te
Ture | Law Commission
Māori Custom and Values in New Zealand Law
(NZLC SP9, 2001) at
37.
92 Hirini Moko Mead
Tikanga Māori: Living by Māori Values (rev ed, Huia Publishers,
Wellington, 2016) at 50.
93 Hirini Moko Mead Tikanga
Māori: Living by Māori Values (rev ed, Huia Publishers,
Wellington, 2016) at 50.
94 Hirini Moko Mead Tikanga
Māori: Living by Māori Values (rev ed, Huia Publishers,
Wellington, 2016) at 54.
95 Hirini Moko Mead Tikanga
Māori: Living by Māori Values (rev ed, Huia Publishers,
Wellington, 2016) at 35.
- Tāhū
o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A
Glimpse into the Māori World – Māori Perspectives on Justice
(March 2001) at 2–3.
- Tāhū
o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A
Glimpse into the Māori World – Māori Perspectives on Justice
(March 2001) at
67.
98 Hirini Moko Mead
Tikanga Māori: Living by Māori Values (rev ed, Huia Publishers,
Wellington, 2016) at 31.
- 2.68 Utu is
relevant to succession, because if there has been a take or hara (offence) that
warrants utu, the obligation to respond
does not die with the individual. That
responsibility belongs to the collective, so if the individual dies, there is no
ea (fulfilment,
resolution).99
Kaitiakitanga
- 2.69 Kaitiakitanga
is an obligation on those who have mana to act unselfishly, with right mind
and heart and with proper procedure.
100 Mana and kaitiakitanga
operate together as “right and responsibility”. 101 Kaitiakitanga obligations
exist over all taonga. 102
Rights to resources are dependent on maintaining kaitiakitanga obligations
over that resource.103 Kaitiakitanga
might thus be described as the reciprocal obligation to care for the well-
being of a person or resources.104
- 2.70 Maintaining
kaitiakitanga obligations is vital to fostering a sense of belonging.
Ensuring that kaitiakitanga rights and
obligations can pass down to the next
generation is a crucial part of succession in te ao Māori.
Aroha and manaakitanga
- 2.71 Aroha
is usually understood as a literal translation of love. However, the meaning is
wider. Professor Hohepa describes aroha
as having “a wide range of meaning
from compassion and love to concern and sorrow”.105 Aroha is an admirable
attribute that has lasting effect and conveys that the values of care, respect
and affection are important.106
Cleve Barlow observes that “[a] person who has aroha for another
expresses genuine concern towards them and acts with their
welfare in mind, no
matter what their state of health or wealth.”107 Aroha underpins the strengthening of
kin relationships, including in the rituals of tangihanga.108
99 See Ellis v R
[2020] NZSC Trans 19 at 58–59, 63 and 69–71.
- Te
Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Ko
Aotearoa Tēnei: A Report into Claims Concerning New Zealand Law and Policy
Affecting Maori Culture and Identity – Te
Taumata Tuatahi (Wai 262,
2011) at 23.
- Te
Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Ko
Aotearoa Tēnei: A Report into Claims Concerning New Zealand Law and Policy
Affecting Maori Culture and Identity – Te
Taumata Tuatahi (Wai 262,
2011) at 23.
- Te
Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Ko
Aotearoa Tēnei: A Report into Claims Concerning New Zealand Law and Policy
Affecting Maori Culture and Identity – Te
Taumata Tuatahi (Wai 262,
2011) at 23.
- Joseph
Williams “Lex Aotearoa: An Heroic Attempt to Map the Māori
Dimension in Modern New Zealand Law” [2013] WkoLawRw 2; (2013) 21 Waikato L Rev 1 at
4.
- Joseph
Williams “Lex Aotearoa: An Heroic Attempt to Map the Māori
Dimension in Modern New Zealand Law” [2013] WkoLawRw 2; (2013) 21 Waikato L Rev 1 at
4.
- Te
Aka Matua o te Ture | Law Commission The Taking into Account of Te Ao Maori
in Relation to Reform of the Law of Succession (NZLC MP6, 1996) at 19.
- Tāhū
o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A
Glimpse into the Māori World – Māori Perspectives on Justice
(March 2001) at
155.
107 Cleve Barlow
Tikanga Whakaaro: Key Concepts in Māori Culture (Oxford University
Press, Auckland, 1994) at 8.
- See
discussion in Harry Dansey “A View of Death” in Michael King (ed)
Te Ao Hurihuri: Aspects of Maoritanga (Reed Publishing, Auckland, 1992)
105 at 110.
- 2.72 Manaakitanga
literally translated means to care for a person’s mana.109 Manaakitanga is required no
matter what the circumstances might be, so even if there is no aroha in the
situation, the obligation
still applies.110 An obvious place where
manaakitanga is important is looking after guests, but the obligation is always
present.111
- 2.73 Aroha and
manaakitanga are relevant to succession because, through these values, other
values can be upheld.
OUR FRAMEWORK FOR CONSIDERING TE AO MĀORI AND
SUCCESSION
- 2.74 The
challenge for the Commission is to understand the Māori perspective and
make recommendations in our final report from
a place of māramatanga
(understanding).
- 2.75 We have
identified three broad ways to consider law reform in relation to te ao
Māori and succession and describe them briefly
below. A common theme is
what role state law should have in facilitating any reform.
- 2.76 Any law
reform would need to be supported by appropriate dispute resolution mechanisms,
including how to bring tikanga Māori
into the resolution process. We
discuss this in Chapter 15.
Allow tikanga Māori to determine succession matters for
Māori, without state law involvement
- 2.77 The
first way would be to give Māori the choice as to whether state succession
law or tikanga should apply to matters of
succession. Succession to all
property owned individually or collectively by Māori could be governed by
tikanga. 112 State law would
recognise and respect the operation of tikanga in relation to succession.
This would require adequate whānau,
hapū and iwi support for dispute
resolution. Tikanga would be applied and developed in whānau hui, on marae
and possibly
in other forums Māori might wish to use113 in accordance with
tikanga.114 There might be a
role for the state to support dispute resolution without interfering with the
process. We have been told that
colonisation has left many Māori without
the knowledge or resources to support a separate tikanga regime, in which
case
some support may be necessary.
- 2.78 We heard
that, on a day-to-day basis, tikanga often determines succession matters for
Māori without any involvement of
state law. Even though relevant state law
might exist, it is not called upon by those involved. This approach
would recognise
tikanga as “packages of ideas which help to organise
behaviour and provide some predictability in
- Tāhū
o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A
Glimpse into the Māori World – Māori Perspectives on Justice
(March 2001) at
166.
110 Hirini Moko Mead
Tikanga Māori: Living by Māori Values (rev ed, Huia Publishers,
Wellington, 2016) at 33.
111 Hirini Moko Mead Tikanga
Māori: Living by Māori Values (rev ed, Huia Publishers,
Wellington, 2016) at 126.
- If
this approach was to apply to Māori land under Te Ture Whenua Maori Act
1993, reform of that Act would be required. The terms
of reference for this
project do not include reviewing this
Act.
113 See Amokura Kawharu
“Arbitration of Treaty of Waitangi Settlement Cross-Claim Disputes”
(2018) 29 PLR 295.
- This
would avoid the concern expressed during our preliminary consultation that if
tikanga is solidified into law it becomes the norm
for everybody and denies the
beauty of iwi variety in perceptions of the world.
how certain activities are carried out” 115 and leave Māori the
choice whether to have tikanga determine what happens when they
die.
- 2.79 This
approach raises profound questions about the relationship between tikanga as the
first law of Aotearoa New Zealand and state
law. These questions go beyond this
succession project.116
Several matters would need to be resolved before tikanga could function
exclusively in relation to succession matters. First, there
would need to be an
understanding of who would be subject to tikanga, including the appropriate role
of an individual, whānau
and hapū in that decision. For example, is it
the individual’s choice or the choice of the whānau that determines
how property is succeeded to?117
Second, there would be practical questions about the understanding of
tikanga and its application, together with how disputes might
be resolved.
Third, there would need to be a system of dealing with conflicts between
tikanga and state law when one party to a
dispute considered themselves governed
by state law rather than tikanga. A system that recognises an intersection
between tikanga
and state law may be preferable. It would allow interaction
between the courts and whānau or hapū to resolve difficult
questions.
- 2.80 Due to the
nature and extent of these matters, we have not included a further chapter
elaborating on this option for reform as
we do for the next two options.
Nonetheless, we are interested in feedback from Māori about this approach
as that would provide
insights relevant to considering reform of succession law
generally.
Remove taonga from succession law and apply tikanga
- 2.81 A
second way of considering law reform in relation to te ao Māori and
succession would be to prevent succession law applying
to particular property.
Items classified as taonga would not be subject to state law. This approach
would not prescribe a set of
rules in state law (as in the TTWMA regime) but
provide that succession to taonga is determined by tikanga.
- 2.82 It has been
stressed to us that it is the tikanga of the whānau that is most important
when succession disputes arise, and
the hapū should assist the whānau
in resolving their disputes, where needed. Taonga would need to be defined
broadly in
any new law to include items that are important from a tikanga
perspective to the whānau or hapū. This option would provide
for
tikanga Māori in state law without attempting to define and apply specific
tikanga within state law.
- 2.83 We discuss
this approach in more detail in Chapter 7.
- Hirini
Moko Mead “The Nature of Tikanga” (paper presented to Mai i te Ata
Hāpara Conference, Te Wānanga
o Raukawa, Otaki, 11–13
August 2000) at 3–4, cited in Te Aka Matua o te Ture | Law Commission
Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at
16.
- See
the discussion in He Whakaaro Here Whakaumu Mō Aotearoa: The Report of
Matike Mai Aotearoa – The Independent Working Group on Constitutional
Transformation (January
2016).
117 Compare Takamore
v Clarke [2012] NZSC 116, [2013] 2 NZLR 733.
Weaving together the values of tikanga Māori and state law
to create better law for all
- 2.84 A
third way of considering law reform in relation to te ao Māori and
succession focuses on creating better state law that
appropriately recognises
and facilitates the application of tikanga Māori. This approach embraces
the “third law”
of Aotearoa New Zealand by creating better
succession law that recognises the values underpinning both tikanga and state
law.118 During our
preliminary consultation, we heard the view expressed that it is desirable for
tikanga to be reflected in state law. Such
law would apply to all New
Zealanders. This approach could operate in tandem with the removal of taonga
from state succession law,
as described above.
QUESTIONS
We discuss this approach in more detail in Chapter 8.
|
|
Q3
|
In your view, what is the role of the Treaty for this review? Do you agree
with our
|
approach? If not, why?
|
Q4
|
Do you think
|
the application of state law to succession is a problem?
|
|
Q5
|
Have we appropriately identified the tikanga principles relevant to
succession? Are
|
there any we have misunderstood or not included?
|
Q6
|
Should tikanga govern succession for Māori?
|
|
Q7
|
If so, how would you like this to happen in practice?
|
|
Q8
|
What would the role of state law be? (Possible roles for state law are
discussed
|
further in Chapters 7, 8 and 15.)
|
- See
Joseph Williams “Lex Aotearoa: An Heroic Attempt to Map the Māori
Dimension in Modern New Zealand Law”
[2013] WkoLawRw 2; (2013) 21 Waikato L Rev 1 at
11–12.
Part Two
Claims and entitlements
CHAPTER 3
Relationship
property entitlements
IN THIS CHAPTER, WE CONSIDER:
- the relationship
property entitlements a person has on the death of their partner;
- the specific
rules of relationship property division that apply; and
- the issues with
the current law and proposals for reform.
THE CURRENT LAW
- 3.1 The
Property (Relationships) Act 1976 (PRA) directs how couples should divide their
property when relationships end because the
partners have separated or because
one of the partners has died.
- 3.2 The property
division rules only apply when the relationship that ended was a marriage,
civil union, or de facto relationship
of three years or longer. The PRA defines
a de facto relationship as a relationship between two people who “live
together
as a couple”.1
De facto couples in relationships of less than three years will not be
required to divide property unless they satisfy additional
criteria.2
- 3.3 To determine
which property a couple should divide, the PRA first classifies certain items
of property as relationship property.
Broadly, relationship property
comprises property the partners acquire during the relationship, property
acquired for the partners’
common use or common benefit and the family
home and family chattels.3
- Property
(Relationships) Act 1976, s 2D. In determining whether two people live together
as a couple, all the circumstances of the
relationship are to be considered,
including the matters prescribed in s 2D(2).
- Property
(Relationships) Act 1976, s 14A. Marriages and civil unions of three years are
generally subject to the ordinary property
division rules unless one of the
special situations outlined in ss 14–14AA
apply.
3 Property
(Relationships) Act 1976, s 8.
- 3.4 On division,
each partner is generally entitled to an equal share in the relationship
property.4
- 3.5 When a
partner to a qualifying relationship dies, Part 8 of the PRA provides the
surviving partner with a choice. They may divide
the couple’s relationship
property (option A), or they may accept whatever gifts are made for them under
the deceased’s
will (option B).5
If the surviving partner does not make a choice, they are treated as having
chosen option B.6
- 3.6 If the
surviving partner elects option A, the PRA’s property division rules will
apply with some modification.7
However, every gift to the surviving partner in the deceased’s
will is to be treated as having been revoked unless the
will expresses a
contrary intention.8
Policy
behind Part 8 of the PRA
- 3.7 The PRA
rests on the theory that a qualifying relationship is a joint venture between
the partners to which each partner contributes
in different but equal ways.9 Each partner therefore has an
entitlement to an equal share of the couple’s relationship property.
- 3.8 The policy
basis of Part 8 is that the surviving partner should receive, at a minimum, the
same entitlements they would have if
the relationship had ended by separation.
In other words, the law ensures the surviving partner is not worse off than if
the couple
had separated.10
- 3.9 The
surviving partner’s right to choose division (option A) or gifts under the
will (option
B) is to avoid forcing a compulsory property division on couples who are
content to have the surviving partner’s entitlements
determined by the
deceased’s will.11
- 3.10 The
rationale for revoking the gifts to a surviving partner when they choose option
A is to avoid the surviving partner receiving
more property than the deceased
intended.12
Particular rules of relationship property division on
death
- 3.11 There
are some differences between Part 8 of the PRA and the rules of relationship
property division that apply when partners
separate. Of particular
note:
4 Property (Relationships)
Act 1976, s 11.
5 Property (Relationships) Act 1976, s
61.
6 Property (Relationships) Act 1976, s
68(1).
7 Property (Relationships) Act 1976, s
75(b).
8 Property (Relationships) Act 1976, s
76.
- Property
(Relationships) Act 1976, s 1N(b); and Te Aka Matua o te Ture | Law Commission
Review of the Property (Relationships) Act 1976 | Te Arotake i te
Property (Relationships) Act 1976 (NZLC R143, 2019) at
[2.44]–[2.46].
- (26
March 1998) 567 NZPD 7916–7925; Report of the Working Group on
Matrimonial Property and Family Protection (Department of Justice, October
1988) at 40; and Te Aka Matua o te Ture | Law Commission Succession Law: A
Succession (Adjustment) Act (NZLC R39, 1997) at [4] and [15].
- See
Report of the Working Group on Matrimonial Property and Family Protection
(Department of Justice, October 1988) at
44–45.
12 See
Matrimonial Property Amendment Bill 1999 (109-2) (select committee report) at
iv.
(a) All property the deceased partner owned at their death is
presumed to be relationship property. 13 The person who asserts the
property is not relationship property carries the burden of proving that
assertion.
(b) Property acquired by the estate is presumed to be relationship
property.14
(c) Property acquired by the surviving partner after the death of the
deceased partner is separate property unless the court considers
that it is
just in the circumstances to treat that property or any part of it as
relationship property.15
(d) The rules that apply to marriages and civil unions of short duration that
end on separation do not apply when a partner dies.
Rather, those relationships
will be subject to equal sharing unless the court, having regard to all the
circumstances of the marriage
or civil union, considers that equal sharing would
be unjust. De facto relationships of short duration, on the other hand, must
still
satisfy the same strict eligibility criteria that apply to relationships
ended by separation.16
RECOMMENDATIONS FROM THE PRA REVIEW
- 3.12 In
the PRA review, we made several recommendations for reform of the rules that
apply to property division on separation that
may be relevant to division on
death.
- 3.13 We
concluded that change to the classification of relationship property is
required.17 We recommended
that property be classified as relationship property if it:
(a) was
acquired for the partners’ common use or common benefit;
(b) was acquired during the relationship other than as a third-party gift or
inheritance; or
(c) is a family chattel.
- 3.14 On this
basis, a family home should be a partner’s separate property if it was
acquired before the relationship or as a
gift or inheritance.18 However, we recommended that
the increase in value of a separate property family home during the time it is
used as the family home
should be relationship property. Any repayment of the
principal amount owing on a mortgage debt relating to the family home using
relationship property should entitle the non-owning partner to
compensation.
- 3.15 We favoured
allocating the burden of proof of establishing whether property is separate
property to the partner that owns the
property.19
13 Property
(Relationships) Act 1976, s 81.
14 Property (Relationships) Act 1976, s
82.
15 Property (Relationships) Act 1976, s
84.
16 Property (Relationships) Act 1976, s
85.
- Te
Aka Matua o te Ture | Law Commission Review of the Property (Relationships)
Act 1976 | Te Arotake i te Property (Relationships) Act 1976 (NZLC
R143, 2019) at R9.
- Te
Aka Matua o te Ture | Law Commission Review of the Property (Relationships)
Act 1976 | Te Arotake i te Property (Relationships) Act 1976 (NZLC
R143, 2019) at [3.73]–[3.79] and [3.123]–[3.125].
- Te
Aka Matua o te Ture | Law Commission Review of the Property (Relationships)
Act 1976 | Te Arotake i te Property (Relationships) Act 1976 (NZLC
R143, 2019) at R16.
- 3.16 We
recommended excluding “items of special significance” from the
definition of family chattels in addition to the
current exclusions for
heirlooms and taonga. As a result, they would not be classified as relationship
property simply because they
were used by the family.20 We said items of special
significance should be defined as items that:
(a) have a special
meaning to a partner; and
(b) are irreplaceable, in that a similar substitute item or its monetary
value would be an insufficient replacement.
- 3.17 We
recommended the continuation of the general rule of equal sharing of
relationship property.21 We
also favoured the continuation of an exception to equal sharing for cases where
extraordinary circumstances make equal sharing
repugnant to justice but with
greater clarity about when a court may take misconduct into account.22
- 3.18 We
recommended the introduction of family income sharing arrangements (FISAs) to
share the economic advantages and disadvantages
arising from a relationship or
its end. We recommended measures to strengthen children’s interests and
participation in relationship
property proceedings. We discuss the
recommendations regarding FISAs and children’s interests further in later
chapters.
ISSUES
Criticisms
of the approach taken in Part 8 of the PRA
- 3.19 There is
criticism that a partner, having chosen option A, must forgo their entitlements
under the deceased’s will.23
The argument is that, by claiming their share of relationship property,
surviving partners are taking what is rightfully theirs. By
denying the partner
the right to inherit from the deceased on top of receiving their share of
relationship property, the partner
unjustly forfeits their rights under
succession law.
- 3.20 A
will-maker can avoid this outcome by stating that the provision for the
surviving partner under the will is to remain even
if the surviving partner
chooses option A (a contrary intention provision). Critics argue, however, there
is anecdotal evidence too
that will- makers seldom include a contrary intention
clause in their will because they are unaware of the surviving
partner’s
rights to choose option A.24
- 3.21 On the
other hand, we have heard concerns that Part 8 of the PRA provides a surviving
partner with too great an entitlement.
Those concerned gave the example of
people who enter relationships late in life and bring property acquired
beforehand, possibly
during a previous relationship. If the relationship had
lasted only a few years or the partners had
- Te
Aka Matua o te Ture | Law Commission Review of the Property (Relationships)
Act 1976 | Te Arotake i te Property (Relationships) Act 1976 (NZLC
R143, 2019) at R21–R22.
- Te
Aka Matua o te Ture | Law Commission Review of the Property (Relationships)
Act 1976 | Te Arotake i te Property (Relationships) Act 1976 (NZLC
R143, 2019) at R37 and [8.20]–[8.23].
- Te
Aka Matua o te Ture | Law Commission Review of the Property (Relationships)
Act 1976 | Te Arotake i te Property (Relationships) Act 1976 (NZLC
R143, 2019) at R39, R41–R43, [8.41]–[8.45] and
[8.83]–[8.95].
- See
Nicola Peart “New Zealand’s Succession Law: Subverting
Reasonable Expectations” (2008) Comm L World
Rev 356 at 372; and
Nicola Peart “Family Finances on Death of a Spouse or Partner” in
Jessica Palmer and others
(eds) Law and Policy in Modern Family Finance:
Property Division in the 21st Century (Intersentia, Cambridge, 2017) 95 at
118.
- Nicola
Peart “New Zealand’s Succession Law: Subverting Reasonable
Expectations” (2008) Comm L World Rev 356 at 372.
chosen not to formalise it, the surviving partner would share in half the
relationship property, potentially affecting the inheritance
of the
deceased’s children.
Criticism of the classification rules in Part 8 of the
PRA
- 3.22 The
presumptions in Part 8, that property of the estate is relationship property
unless proven otherwise, have been criticised.
The evidential burden on the
personal representatives is difficult to discharge. Some people have told us the
presumptions are particularly
unsuited to short relationships between people
later in life because those relationships are unlikely to generate substantial
relationship
property.
Criticism of the rules relating to qualifying relationships in
Part 8 of the PRA
- 3.23 We
have heard concerns that the different treatment between marriages and civil
unions of short duration and de facto relationships
of short duration is
discriminatory. Some argue the same rules should apply to all, recognising
that the death of a de
facto partner is an involuntary end to the
relationship in the same way as the death of a spouse or civil union
partner.
- 3.24 A further
issue arises concerning former partners. Currently, Part 8 of the PRA applies to
former spouses and civil union partners,
provided not more than 12 months have
elapsed since any dissolution order. 25 In contrast, no time limit
applies to former de facto partners.26 The omission of a time limit
is probably an oversight as it is unlikely Parliament intended former de facto
partners’ relationship
property rights to revive on death if they were out
of time to bring proceedings following separation.27
Unequal sharing of relationship property
- 3.25 Difficulties
may arise when applying the PRA’s exceptions to equal sharing to
relationship property division on death.
If there are extraordinary
circumstances that would make unequal sharing repugnant to justice, the court
may order that relationship
property be divided based on the partners’
contributions to the relationship.28 In the PRA review, we
recommended this provision continue. We added that, when deciding whether there
are extraordinary circumstances
that make equal sharing repugnant to justice, a
court should be able to take into account a partner’s gross misconduct
when
that misconduct has significantly affected the extent or value of
relationship property.
- 3.26 When
applying these provisions to relationships ending on death, the deceased would
not be able to respond to allegations of
misconduct made against them. Personal
representatives may struggle to refute or substantiate arguments about the
extraordinary circumstances
and the partners’ respective contributions to
the relationship.
- 3.27 These
discretionary exceptions to equal sharing are likely to cause uncertainty and
lead to disputes. The parties may find it
difficult to predict a surviving
partner’s likely
25 Property
(Relationships) Act 1976, s 89(1)(d). However, the court may grant an extension:
s 89(1)(e).
26 Property (Relationships) Act 1976, s
89(1)(b).
27 See discussion in Nicola Peart (ed)
Family Property (online looseleaf ed, Thomson Reuters) at [PR89.01].
28 Property (Relationships) Act 1976, s
13.
relationship property entitlements. As those entitlements are more contestable,
disputes are more likely to arise that cannot be
settled by the parties without
the court’s intervention. Efficient estate administration may be
undermined.
PROPOSALS FOR REFORM
Relationship
property entitlements should remain available to surviving partners
- 3.28 Our
preliminary view is that a surviving partner from a qualifying relationship
should have available to them a right under the
new Act to a share of the
couple’s relationship property. The extent of that entitlement should be
based on the property division
rules that apply when couples separate. The new
Act should continue the policy that a surviving partner should not be worse off
on
the death of their partner than they would have been had they separated from
their partner.
- 3.29 Our reasons
are as follows:
(a) The theory that a partner to a relationship has
an entitlement to an equal share of the relationship property arising from
their contributions to the relationship is sound.
(b) It is an accepted part of New Zealand law that partners have relationship
property entitlements when a relationship ends by separation
or on death.
(c) The policy appears to be consistent with public attitudes and
expectations. In the Succession Survey, respondents were asked about
a situation
where a man dies and is survived by his two adult children from his first
marriage and his second wife to whom he had
been married for 10 years. The
couple’s family home was bought by the husband during the second marriage.
In his will, the
man left the home to his children even though, had the couple
divorced, the wife would have been entitled to a half share of the
home. Over 75
per cent of respondents either agreed or strongly agreed that the wife should be
entitled to at least a half share
of the home regardless of what the will
said.29
(d) The recommendations from the PRA review, if implemented, will address
some of the concerns about the current law relating to equal
sharing of
relationship property when the property has been acquired before the
relationship.
- 3.30 In Chapter
8, we consider obligations sourced from tikanga a deceased partner might owe to
a surviving partner in relation to
property. In particular, we ask whether the
presumptions of sharing relationship property on death accord with tikanga and
how tikanga
might respond differently.
A partner should continue to have the right to elect a
relationship property division
- 3.31 Our
preliminary view is that surviving partners should continue to have a choice
whether to elect a relationship property
division under the new Act (option A)
or receive only what is provided to them under the deceased’s will or in
an intestacy
(option B).
- Ian
Binnie and others Entitlements to deceased people’s property in New
Zealand: Public attitudes and values – A general population survey
(Te Whare Wānanga o Ōtākou | University of Otago, research
report to the Michael and Suzanne Borrin Foundation, Dunedin,
April 2021) at
[148] and figure 13.
- 3.32 We do not
consider the law should require a relationship property division in all
cases. That would be a significant shift
in the law. We are also mindful that,
in most cases, will- makers provide generously for their partners.30
- 3.33 A surviving
partner is likely to choose option A only where the deceased intended to
leave the surviving partner less
than their relationship property entitlement.
If a partner chooses a relationship property division, we do not consider the
law should
allow the partner to take their share of relationship property
plus gifts under the will, unless the will displays a contrary intention.
If the deceased was aware the survivor would receive a share
of
relationship property, it is reasonable to assume they would not have gifted
them further property.
- 3.34 Where a
partner dies intestate and a surviving partner elects option A, we propose the
current law continues. The surviving partner
would have no entitlement under
the intestacy regime but instead receive their relationship property
entitlement.31
- 3.35 We are,
however, contemplating a change to the rule that revokes gifts to the surviving
partner if they elect option A when the
deceased partner has a will. Our
preliminary view is that the new Act should take a “top-up”
approach.32 Under a top-up
approach, when a partner chooses option A, they would keep whatever gifts are
made for them under the will rather than
having to forfeit them. They would then
receive from the estate whatever further property is needed to ensure they
receive the full
value of their relationship property entitlement.33 We consider this approach is
likely to disrupt the distribution of an estate pursuant to the will to a lesser
extent than the current
law. The top-up approach is therefore likely to be more
consistent with the deceased’s testamentary intentions and easier for
the
personal representatives to administer.
Qualifying relationships
- 3.36 Our
preliminary view is that the same qualifying criteria that apply to
relationships ending on separation should apply to
relationships ending on
death under the new Act.
- 3.37 Consistent
with our recommendations in the PRA review, the new Act should apply to all
marriages and civil unions irrespective
of their length. Couples in these
relationships have chosen to formalise their commitment. There is also an
increasing trend for
marriages and
- For
example, we have received data from the Probate Registry of te Kōti
Matua | the High Court that shows that,
in 2019, out of 18,397
applications for probate and letters of administration, 16 surviving
partners filed notices of electing
option A compared with 721 who filed
notices of option B: email from Tāhū o te Ture | Ministry
of Justice
to Te Aka Matua o te Ture | Law Commission regarding data on
applications for probate and letters of administration (11
August 2020);
and email from Tāhū o te Ture | Ministry of Justice to Te Aka
Matua o te Ture | Law Commission
regarding data on probate applications
(24 August 2020). Note that a partner will only file notices with
the Registry
if administration of the estate has not yet been granted.
However, it is a strong indication that elections of option A are relatively
rare.
31 See Property
(Relationships) Act 1976, s 76(3).
- This
approach is taken in Manitoba: The Family Property Act CCSM 1987 c F25, s 39.
The Law Reform Commission of Nova Scotia has recently
recommended that Nova
Scotia law be amended to take a top-up approach: Law Reform Commission of Nova
Scotia Division of Family Property (Final Report, 2017) at
254–255.
- Our
preliminary view is that further provision should be sourced from the
relationship property held in the estate, with the court
having discretionary
power to order that it be sourced from other parts such as the residuary
estate.
civil unions to be preceded by a de facto relationship, 34 which is included when
determining the length of the relationship.35
- 3.38 Our
preliminary view is that de facto relationships of less than three years should
not generally qualify for a relationship
property division on the death of a
partner. As explained in the PRA review, there are two broad objectives of a
qualifying period
for relationships ending on separation.36 They are equally relevant to
relationships ending on death. First, it is a measure of commitment between the
partners in the absence
of a deliberate decision to formalise the relationship.
Second, it acts as a safeguard against the retrospective imposition of property
sharing obligations on unsuspecting partners.
- 3.39 There are,
however, instances where a de facto relationship of less than three years ought
to qualify. In the PRA review, we
recommended that the current rules be amended
so that the ordinary rules of equal division should apply to de facto
relationships
of less than three years if:37
(a) there is a child of the
relationship and the court considers it just to make an order for division;
or
(b) the applicant has made substantial contributions to the relationship and
the court considers it just to make an order for division.
- 3.40 Our
preliminary view is that these rules ought to apply in the new Act.
- 3.41 We favour a
single rule that determines the eligibility of former spouses and de facto
partners. Our preliminary view is that
all former spouses and partners should
remain eligible for relationship property division under the new Act provided no
longer than
two years have elapsed between the partners ceasing to live together
in the relationship and the time a partner dies.38 A two-year period is likely
to reflect a period after which former partners can reasonably be expected to
have moved on with their
lives.39
Two years is also the period that a married couple or civil union partner
must be living apart for before a dissolution order can
be granted.40
- See
Superu Families and Whānau Status Report 2014: Towards Measuring the
Wellbeing of Families and Whānau (Kōmihana ā Whānau |
Families Commission, June 2014) at 164. See also Te Aka Matua o te Ture | Law
Commission Relationships and Families in Contemporary New Zealand | He
Hononga Tangata, he Hononga Whānau i Aotearoa o Nāianei (NZLC
SP22, 2017) at
17–18.
35 Property
(Relationships) Act 1976, ss 2B–2BAA.
- Te
Aka Matua o te Ture | Law Commission Review of the Property (Relationships)
Act 1976 | Te Arotake i te Property (Relationships) Act 1976 (NZLC
R143, 2019) at [6.9].
- Te
Aka Matua o te Ture | Law Commission Review of the Property (Relationships)
Act 1976 | Te Arotake i te Property (Relationships) Act 1976 (NZLC
R143, 2019) at [6.64].
- The
concept of ceasing living together in the relationship is drawn from ss 2A(2),
2AB(2) and 2D(4) of the Property (Relationships)
Act 1976 which define when a
marriage, civil union and de facto relationship end for the purposes of the
PRA.
- We
recognise the difference between this proposal and s 24 of the Property
(Relationships) Act 1976, which provides that an application
must be made under
the Act no later than three years after a de facto relationship has ended.
- Family
Proceedings Act 1980, s 39(2). We recognise the difference between this proposal
and s 24 of the Property (Relationships) Act
1976, which provides that an
application must be made under the Act no later than three years after a de
facto relationship has ended.
- 3.42 Lastly, we
consider tailored rules are required to address contemporaneous relationships.
Currently, the PRA establishes a regime
for dividing relationship property in
contemporaneous relationships, specifically when a person was a partner in:41
(a) a marriage or civil
union as well as a de facto relationship; or
(b) two de facto relationships.
- 3.43 In the PRA
review, we identified several issues with the provisions applying to
contemporaneous relationships and recommended
reform.42 Our preliminary view is that
those recommendations should apply to the new Act. Accordingly, we propose a
rule that applies whenever
property of the deceased comprises property that may
be relationship property of two or more qualifying relationships (contested
relationship property). Under the new Act, that would occur when both surviving
partners from the contemporaneous relationship elect
option A. When determining
how to apportion the contested relationship property to meet each surviving
partner’s respective
top-up entitlement, we propose the court should
apportion it in accordance with the contribution of each relationship to the
acquisition,
maintenance and improvement of that property.
Classification and division of relationship property
- 3.44 A
surviving partner’s relationship property entitlements should continue
to be based on the classification and division
rules that apply when partners
separate. Our preliminary view is that the new Act should incorporate those
rules.
- 3.45 We consider
the general revisions to the definition of relationship property recommended
in the PRA review should apply. This
would include the changes recommended to
the classification of the family home, family chattels and jointly owned
property.
- 3.46 Our
preliminary view is that the burden of proof of establishing whether property is
separate property should be on the party
that owns the property. If the personal
representatives claim property of the estate is separate property, they would
have the burden
of proof. Similarly, a surviving partner’s property would
be classified as relationship property unless they were able to prove
it was
their separate property.
- 3.47 The main
reason for allocating the burden of proof this way is to balance the position of
the estate and the surviving partner
as both would carry the burden in relation
to separate property. It also ensures consistency with the regime that the
Commission
recommended should apply to relationships ending on separation.
- 3.48 The new Act
should continue to provide a general rule that each partner is entitled to an
equal share of relationship property.
Our preliminary view is that the court
should also have discretion to order unequal division of relationship property
where there
are extraordinary circumstances that make equal sharing repugnant to
justice. When this exception applies, the court would order
that relationship
property be divided pursuant to the partners’ contributions to the
relationship. Although we recognise the
difficulties when the court is required
to make a discretionary assessment like this, we consider
they
- Property
(Relationships) Act 1976, ss 52A and 52B. Some multi-partner relationships may
be captured by the contemporaneous relationships
provisions, although others
will not. See discussion on multi-partner relationships in Chapter 18.
- Te
Aka Matua o te Ture | Law Commission Review of the Property (Relationships)
Act 1976 | Te Arotake i te Property (Relationships) Act 1976 (NZLC
R143, 2019) at R33–R34, [7.34]–[7.48] and
[7.55]–[7.61].
are outweighed by the benefit of enabling the court to respond when the facts of
a case warrant unequal division.
- 3.49 Likewise,
our preliminary view is that the new Act should take an approach towards a
partner’s misconduct that is consistent
with the recommendations in the
PRA review. The court should consider misconduct relevant when it is gross and
has affected the value
or extent of relationship property. However, it should
only be relevant to the court’s determination when
considering:
(a) whether there are extraordinary circumstances that
make equal sharing repugnant to justice;
(b) the partners’ contributions to the relationship;
(c) whether to make an occupation, tenancy or furniture order; and
(d) what orders to make under the new Act to implement the division of
relationship property.
SUMMARY OF PROPOSALS FOR REFORM
- A
surviving partner to a qualifying relationship should have a right under the
new Act to choose a division of relationship property on the death of
their partner.
- If a
surviving partner chooses a relationship property division, they should keep
whatever gifts are made for them under the will. They should then receive
from the estate whatever further property is needed to
ensure they receive the
full value of their relationship property entitlement.
- To be
eligible to choose a division of relationship property, the surviving
partner should have been in a qualifying relationship with the deceased,
being a:
- marriage;
- civil
union; or
- de
facto relationship of three years or more.
- De facto
relationships of less than three years should satisfy additional criteria to
be considered a qualifying relationship.
- Where the
partners have separated prior to death, the survivor should remain eligible
to claim under the new Act provided no longer than two years have
elapsed between the partners ceasing to live together in the
relationship and
the time a partner dies.
- The new Act
should contain specific rules that require a court to apportion contested
relationship property between surviving partners from contemporaneous qualifying
relationships in accordance with the contribution
of each relationship to the
acquisition, maintenance and improvement of that property.
- A surviving
partner’s relationship property entitlements should be based on the
classification and division rules recommended in the PRA review that would
apply when partners separate, including that:
- property
acquired before the relationship or as a gift or inheritance should be separate
property, including the family
home;
|
|
Q9
|
Do you agree with the issues we have identified?
|
|
Q10
|
Are there other issues with the law we have not identified?
|
|
Q11
|
What are your views on the proposals for reform?
|
|
Q12
|
Do you have
|
any other suggestions for reform?
|
|
the burden of proof of establishing whether property is separate property should
be on the party that owns the property; and
o the court should have discretion to order unequal division
of relationship property where there are extraordinary circumstances that
make
equal sharing repugnant to justice.
QUESTIONS
CHAPTER 4
Family
provision claims
IN THIS CHAPTER, WE CONSIDER:
- the rights
family members have to challenge a will or entitlements in an intestacy because
the provision is inadequate for their maintenance
and support; and
- issues with the
current law and proposals for reform.
THE CURRENT LAW
- 4.1 A
family member of the deceased may consider that, given their familial
relationship, the provision available for them under
the deceased’s will
or an intestacy is inadequate. In these circumstances, the Family Protection
Act 1955 (FPA) allows
family members to apply to the court for further
provision from the estate. The family member may claim under the FPA in
addition
to any other claims they may have under the Property (Relationships)
Act 1976 (PRA) or Law Reform (Testamentary Promises) Act 1949
(TPA).
- 4.2 The family
members eligible to claim under the FPA are the deceased’s:1
(a) spouse or civil union
partner;
(b) de facto partner who was living in a de facto relationship at the date of
death;
(c) children 2 regardless
of their age or whether they were being maintained by the deceased immediately
before the death;
(d) grandchildren living at the date of death;3
(e) stepchildren who were being maintained wholly or partly or were legally
entitled to be maintained wholly or partly, by the deceased
immediately before
the death; and
(f) parents if they were being maintained wholly or partly, or were legally
entitled to be maintained, by the deceased immediately
before the death, or
there is no living
1 Family Protection Act
1955, s 3.
2 This includes legally adopted
children but not whāngai: see Keelan v Peach [2002] NZCA 296; [2003] 1 NZLR 589 (CA)
at [43].
- When
considering a grandchild’s application, a court will have regard to any
provision to the grandchild’s parents: Family
Protection Act 1955, s
3(2).
spouse, civil union partner, de facto partner or child of the deceased’s
qualifying relationship.
- 4.3 When
considering an application under the FPA, a court has discretion to grant
further provision from the estate if under the
deceased’s will or in an
intestacy, adequate provision is not available for the family member’s
“proper maintenance
and support”.4
- 4.4 Early case
law introduced the concept of a “moral duty”, articulated as
“a manifest breach of that moral duty
which a just, but not a loving,
husband or father owes towards his wife or towards his children”.5 Over the past 110 years, New
Zealand courts have embedded the concept of moral duty in their decisions. The
test is now commonly articulated
as whether, objectively considered, there has
been a breach of a moral duty judged by the standards of a wise and just
will-maker.6
- 4.5 The courts
have established several principles to aid in determining whether there has been
a breach of the moral duty and to
establish parameters for awards.7 Perceived unfairness is not
sufficient to establish a breach, nor is mere unequal treatment between
beneficiaries. All the circumstances
of the case will be relevant including
changing social attitudes. The size of the estate and competing claims are also
relevant considerations.
The award should not exceed what is necessary to remedy
the failure to make adequate provision.8
- 4.6 The FPA is
not limited to only those family members who depended on the deceased. Rather,
the courts have confirmed adequate “support”
means financial
provision from an estate as recognition of belonging to the family, even if the
claimant has no economic need.9
- 4.7 FPA claims
are commonly made where a child has been treated differently to their siblings
or the interests of a subsequent partner
have been preferred over those of a
child (or vice versa). There are many reasons why a parent might treat their
children unequally
in their will. It could be that one child received greater
financial assistance during the parent’s lifetime, or that the children
are in differing financial positions. Sometimes, the parent is estranged from
one child or had a closer relationship with another,
or it could be that one
child spent a substantial amount of time or money assisting the parent during
their lifetime.
4 Family Protection Act
1955, s 4.
5 Re Allardice [1909] NZGazLawRp 268; (1909) 29 NZLR
959 (CA) at 972–973.
6 Little v Angus [1981] 1 NZLR
126 (CA) at 127. See also Talbot v Talbot [2018] NZCA 507, [2018] NZFLR
128 at [40].
7 See Vincent v Lewis [2006]
NZFLR 812 (HC) at [81] for a summary of principles frequently applied.
8 See Henry v Henry [2007] NZCA
42, [2007] NZFLR 640 at [55]–[56].
- See
the leading Court of Appeal decision in Williams v Aucutt [2000] NZCA 289; [2000] 2 NZLR
479 (CA) at [52]. A Te Aka Matua o te Ture | Law Commission survey of cases
published on Westlaw NZ and LexisAdvance over a 10-year period ending
18
November 2019 identified that awards were made to recognise the family bond in
the absence of financial need in 28 of 93 (30 per
cent) first instance cases
involving adult children. In two of these cases, there were allegations of abuse
that factored into the
awards. Additional to these 28 cases, there was one court
order (by consent) approving settlement to children with no apparent financial
need: Re Estate of C; C v G [2017] NZHC 1326, [2017] NZFLR
493.
ISSUES
Unclear objectives and broad judicial discretion
- 4.8 Although
not clear from the FPA itself, the Act has been applied in pursuit of
different policy objectives under the guise
of “moral duty”.
Broadly, these objectives might be described as protection, recognition, and
reward/compensation:10
(a) Protection – by
providing maintenance to dependent or “needy” family members.11
(b) Recognition – by recognising the presence of a family relationship
and symbolising the bonds that ought to exist.
(c) Reward/compensation – by rewarding the family member’s good
conduct 12 or compensating
the family member for the deceased’s bad conduct.13
- 4.9 These broad
objectives combined with judicial discretion may make the FPA a compelling
choice of claim. The FPA may be used instead
of, or in addition to, other
(sometimes more suitable) claims against an estate. For example, an FPA claim
may be used instead of
a TPA claim when the claimant contributed to the deceased
or their estate,14 or it may
be used as a catchall amongst several other claims.15
- 4.10 The
court’s reliance on morality is problematic. In any situation, there can
be a wide variety of views about what,
if any, moral obligation the deceased
has, particularly in a culturally diverse society or one where there are
differences in wealth
and social perspective.16 Case analysis shows
variation both in the reasons for determining a breach of moral duty and for
quantifying awards.17 The FPA
has been criticised for enabling a
- These
objectives were discussed by the Commission in the 1990s succession review: see
Te Aka Matua o te Ture | Law Commission Succession Law: Testamentary Claims
– A discussion paper (NZLC PP24, 1996) at [200].
- Protection
of dependants is arguably the statute’s intended purpose. The predecessor
to the FPA, the Testator’s Family
Maintenance Act 1900, was enacted at a
time where there was no established welfare state and women and dependent
children were economically
vulnerable. The Parliamentary debates recorded a
desire to avoid dependence on the state and although the legislation did not
require
complete destitution, it was acknowledged that awards would be
constrained to providing for a wife or child’s maintenance where
this was
needed: see (12 July 1900) 111 NZPD 503– 504.
- This
might include rewarding dutiful acts by the claimant towards the deceased or
contribution to the estate property: see for example
Norton v Norton
[2013] NZFC 7619; and Brosnahan v Meo [2021] NZHC 79.
- A
common example is compensation for a parent’s failures in the
child’s upbringing, potentially even for abuse the child
suffered: R v
Public Trust [2016] NZFC 6313; L v B [2013] NZFC 9167; B v S
[2013] NZFC 2932; B v K [2013] NZFC 591; Joan v Mary [2012]
NZHC 1830; and C v C FC Auckland FAM-2007-004-773, 26 July 2010. Note
that ACC cover may be available for personal injury: Accident Compensation Act
2001, pt 2.
- See
for example Brosnahan v Meo [2021] NZHC 79 at [75], where the Court
commented that the deceased mother’s promise to her son was in the nature
of a testamentary promise but that
the son did not make a claim under the
TPA.
- An
FPA claim is often brought alongside other claims such as challenges to the
capacity of a will-maker and the validity of a will,
relationship property
claims or even spousal maintenance applications: see for example R v R FC
Invercargill FAM-2008-025-1095, 10 May 2011; and H v K [2020] NZHC 2149.
In the recent case Dymond v Upritchard [2020] NZHC 3274, the Court upheld
the Family Court’s award of 40 per cent of the estate to the
deceased’s husband which was at least
in part to implement the
deceased’s erroneous belief that their home would pass by survivorship to
her husband: at [67]–[70].
- Richard
Sutton and Nicola Peart “Testamentary Claims by Adult Children – The
Agony of the Wise and Just Testator”
[2003] OtaLawRw 6; (2003) 10 Otago L Rev 385 at
408.
- In
the 10-year period ending 18 November 2019, there were 32 appeals published on
Westlaw NZ and LexisAdvance that inquired into awards
under the FPA. Twelve
(37.5 per cent) of these appeals were successful and resulted
in
judge to substitute their determination of what is moral or fair in the place of
the will- maker’s determination.18
- 4.11 The lack of
clarity has practical consequences. Predicting case outcomes may be difficult
for will-makers, potential claimants
and lawyers advising these parties. The
uncertainty may discourage claimants and personal representatives from settling
out of court.
Court resources may be required to resolve such
disputes.
Inconsistency with public perceptions of testamentary
freedom and family obligations
- 4.12 The
majority of FPA claims reaching the courtroom are made by the deceased’s
adult children, most of whom were not dependent
on their deceased parent and may
be financially secure. 19
Concerns have at times been raised by the legal profession and members of
the judiciary that some of the awards and settlements in
favour of adult
children not in any need of maintenance may have been out of line with social
attitudes to testamentary freedom.20
- 4.13 Eighty per
cent of respondents to the Succession Survey said they agreed that a person
should be allowed to exclude family members
from their will.21 However, when presented with
different family scenarios, respondents were more likely than not to agree that
a family member should
be allowed to challenge a will and get a share of an
estate. For example, 80 per cent of respondents agreed that a young child should
be able to challenge their parent’s will and get a share where that estate
is being left to a charity. This reduced to 56 per
cent where that child was an
adult.22
- 4.14 The Survey
findings suggest that testamentary freedom is important to most New Zealanders,
but there is general support for some
limits on this freedom to ensure certain
family members are provided for. In our preliminary view, it remains appropriate
to have
changes to the awards made, increasing or decreasing the award
in the first instance or in some cases reinstating the will. A thirteenth
case,
George v Blomfield [2017] NZFC 7553, was a rehearing rather than an
appeal but also resulted in an increase in the award made.
- John
Caldwell “Family protection claims by adult children: what is going
on?” (2008) 6 NZFLJ 4 at 4. See also Mary Foley “The Right of
Independent Adult Children to Receive Testamentary Provision: A Statutory
Interpretation
and Philosophical Analysis of the New Zealand Position”
(PhD Dissertation, Te Whare Wānanga o Ōtākou | University
of
Otago, 2011) at 84; and Greg Kelly “An Inheritance Code for New
Zealand” (LLM Dissertation, Te Herenga Waka | Victoria
University of
Wellington, 2010) at 19.
- Te
Aka Matua o te Ture | Law Commission’s review of FPA cases published on
Westlaw and LexisNexis in the 10-year period ending
18 November 2019 found that
of the 116 cases heard and decided (excluding appeals), 93 cases (80 per cent)
involved a claim by one
or more adult child, none of whom were dependent on the
deceased immediately before death. In 40 of the 93 cases (43 per cent), the
court found that none of the child claimants were in financial need, and in an
additional five cases, the court found that only some
of the child claimants
were in financial need. Awards were made in 28 of the 45 cases and a court order
(by consent) approved a settlement
in an additional case.
- Williams
v Aucutt [2000] NZCA 289; [2000] 2 NZLR 479 (CA) at [45]. See also Nicola Peart “Awards
for children under the Family Protection Act” (1995) 1 BFLJ 224.
- Sixteen
per cent disagreed and the remaining four per cent said it depends or they do
not know: Ian Binnie and others Entitlements to deceased people’s
property in New Zealand: Public attitudes and values – A general
population survey (Te Whare Wānanga o Ōtākou | University of
Otago, research report to the Michael and Suzanne Borrin Foundation, Dunedin,
April 2021) at [95] and figure 1.
- Ian
Binnie and others Entitlements to deceased people’s property in New
Zealand: Public attitudes and values – A general population survey
(Te Whare Wānanga o Ōtākou | University of Otago, research
report to the Michael and Suzanne Borrin Foundation, Dunedin,
April 2021) at
figure 11.
a law that balances these competing interests, but views are mixed about who
should receive provision and in what circumstances.
Effects of disputes on families
- 4.15 We
have heard from lawyers that, while a claimant may feel vindicated by an award,
FPA claims can severely damage relationships
between family members. Prolonged
disputes add to the time and costs of administration, negatively affecting
beneficiaries
of the estate who are often also family members. There are also
questions as to how the hurt caused by a parent’s failure
to recognise a
child in their will can be remedied by a judge’s decision to award
provision from an estate.23
PROPOSALS FOR REFORM
- 4.16 We
propose that the FPA should be repealed, and the new Act should provide that
certain family members may make a claim for a
family provision award. We present
several options below for which family members should be eligible to claim and
the basis for those
awards. By way of summary, these options
are:
(a) Option One: family provision awards for partners — A
surviving partner who has insufficient resources to maintain a reasonable,
independent standard of living, having regard to the economic consequences of
the relationship or its end for that partner, should
be entitled to a family
provision award from the estate to transition from the family joint venture.
(b) Option Two: family provision awards for children under a prescribed age
— A child of the deceased should be able to make
a claim for a family
provision award from the estate to enable the child to be maintained to a
reasonable standard, and so far as
is practical, educated and assisted towards
attainment of economic independence. A child would be defined in the new Act
according
to an age limit. Three alternatives are presented: 18, 20 or 25
years.
(c) Option Three: family provision awards for disabled children — A
disabled child of the deceased should be able to make a
claim for a family
provision award from the estate where the child does not have sufficient
resources to enable them to maintain
a reasonable standard of living.
(d) Option Four: recognition awards for children of all ages – A child
of the deceased should be able to claim for provision
from the estate to
recognise the importance of the parent child relationship and to acknowledge
that the child belongs to the family.
Such an award would be available if the
deceased fails to recognise the child in their will or the child receives
nothing on intestacy.
We refer to this type of family provision as recognition
awards.
- 4.17 In our
preliminary view, the law relating to family provision should be consistent with
the legal duties the deceased owed to
their family members during their
lifetime. The first and second options for reform we propose represent our
preferred approach.
They draw on established pillars of family law policy
regarding the obligations between partners and the obligations parents owe
their
children before they reach adulthood.
23 John Caldwell
“Family protection claims by adult children: what is going on?”
(2008) 6 NZFLJ 4 at 9.
- 4.18 There are
compelling reasons to prefer Options One and Two (and not Options Three
and Four). The first is that they would
improve certainty and predictability in
the law. Second, they would reduce the amount of litigation in this area, which
in turn
would relieve pressure on judicial resources and may have positive
implications for the relationships between surviving family members.
- 4.19 We
recognise, however, that many people may feel uncomfortable that a parent could
exclude their adult children under their will
or perhaps treat one or more of
them less favourably than their siblings. Adult children could potentially have
their economic needs
ignored by their parents, feel excluded from the family or
suffer the hurt of seeing other family members shown greater favour.
- 4.20 A majority
(59 per cent) of respondents in the Succession Survey said that children of any
age should be able to challenge a
will and receive a share of the estate if they
are not included in it.24
Additionally, 87 per cent of respondents supported a disabled adult
child’s ability to challenge a parent’s will when
the estate was
left to charity. Where a parent had two adult children and left everything to
one of them, 62 per cent of respondents
supported the other child being able
to claim provision. When asked whether it made a difference that the excluded
child was struggling
financially, this only increased to 67 per cent.25 To us, this suggests that
recognition and fairness matter more to people in these situations than
financial need.
- 4.21 Consequently,
we present a third option for reform relating to disabled adult children and a
fourth option for reform relating
to the recognition of children generally. The
third and fourth options could each be adopted in addition to the first and
second
options.
- 4.22 In Chapter
8, we consider what tikanga says about the rights of whānau members to
challenge a deceased’s testamentary
wishes. We ask specifically whether
the proposals presented in this chapter are consistent with tikanga and how
whāngai should
be treated in this context.
Option One: family provision awards for partners
- 4.23 In
relationships ending on death, the surviving partner may have suffered and
continue to suffer economic disadvantages from
the relationship or its end. A
common example is where the surviving partner has forgone full participation in
the workforce to care
for the couple’s children. The deceased partner,
while alive, was free to work. Both partners will have benefited from the
arrangement, which can be understood as a family joint venture.26 However, the surviving
partner’s expectations of continued provision through the family joint
venture may be defeated on the
deceased’s death through no
or
- Respondents
were asked separately about children aged under 18 and over 18, and 59 per cent
supported the challenge in each age category.
Ian Binnie and others
Entitlements to deceased people’s property in New Zealand: Public
attitudes and values – A general population survey (Te Whare
Wānanga o Ōtākou | University of Otago, research report to the
Michael and Suzanne Borrin Foundation, Dunedin,
April 2021) at figure 4.
- Ian
Binnie and others Entitlements to deceased people’s property in New
Zealand: Public attitudes and values – A general population survey
(Te Whare Wānanga o Ōtākou | University of Otago, research
report to the Michael and Suzanne Borrin Foundation, Dunedin,
April 2021) at
figure 11.
- For
a description of the theory of the family joint venture see Te Aka Matua o te
Ture | Law Commission Review of the Property (Relationships) Act 1976 |
Te Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at
[2.43]–[2.48].
inadequate provision. In these circumstances, it is appropriate that the court
award the surviving partner provision from the estate
to enable them to maintain
a reasonable, independent standard of living while they move towards financial
independence.27
- 4.24 We
therefore propose that a surviving partner should be eligible to make a family
provision claim. The court should grant an
award when the surviving partner has
insufficient resources to enable them to maintain a reasonable, independent
standard of living,
having regard to the economic consequences for that partner
of the relationship or its end. The provision the court grants from the
estate
should be to enable the partner to transition from the family joint
venture.
- 4.25 An
assessment of sufficient resources should take into account any relationship
property to which that partner is entitled.
When a surviving partner’s
entitlement under the will or on intestacy is less than their share of
relationship property,
the partner should first apply to divide their
relationship property before seeking a family provision award.
Definition of “partner” for the purpose of a
family provision award
- 4.26 We
propose that people who, prior to the death of their partner, were in qualifying
relationships for the purposes of the PRA
(as amended in accordance with the
recommendations in the PRA review) should be eligible for family provision from
the estate.28 That would
include surviving spouses, civil union partners and de facto partners who have
been in a de facto relationship for three
years or more.29 Partners in a de facto
relationship that does not satisfy the three-year qualifying period should still
qualify if the relationship
meets additional eligibility criteria. In the PRA
review, we recommended that the criteria should be:30
(a) there is a child of the
relationship and the court considers it just to make orders;31 or
(b) the applicant has made substantial contributions to the relationship and
the court considers it just to make an order for division.
- 4.27 Separated
partners who have not made a valid settlement agreement should remain eligible
provided that no longer than two years
have elapsed between the
partners
- In
limited circumstances a surviving partner may be entitled to maintenance from
the estate under pt 6 of the Family Proceedings Act
1980. For example, a
maintenance order granted after a marriage or civil union has been dissolved or
the de facto relationship ended
can extend against the deceased’s estate:
Family Proceedings Act 1980, ss 70, 71 and
180. The Commission
recommended that the maintenance regime be repealed: see Te Aka Matua o te Ture
| Law Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at R50.
- Where
the deceased is survived by more than one partner, each partner may be eligible
to make a family provision claim provided they
were in a qualifying relationship
with the deceased. For further discussion on contemporaneous and multi-partner
relationships see
Chapters 3 and 18.
- In
the PRA review we made recommendations to include a presumption that two people
are in a qualifying de facto relationship if they
have maintained a common
household for a period of at least three years: see Te Aka Matua o te Ture | Law
Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at
R26.
- Te
Aka Matua o te Ture | Law Commission Review of the Property (Relationships)
Act 1976 | Te Arotake i te Property (Relationships) Act 1976 (NZLC
R143, 2019) at [6.64].
- In
the PRA review we said the court must be satisfied it is just to make
“division” orders, but that could be applied
to family provision
awards.
ceasing to live together in the relationship and the death.32 We have included a limited
period of eligibility for separated partners because the essence of the claim is
to address the economic
consequences of the relationship or its end that the
surviving partner carries into the future. It would defeat the purpose of the
remedy if the surviving partner was ineligible because they happened to have
separated from the deceased shortly before the death.
A two-year period is
likely to reflect the period after which former partners can reasonably be
expected to have moved on with their
lives. Two years is the period that a
married couple or civil union partner must be living apart for before a
dissolution order can
be granted.33
Quantifying a family provision award
- 4.28 We
consider that the amount of a family provision award to a surviving partner
should be at the discretion of the court but guided
by the matters we set out
below. Our reasons for a discretionary approach are as
follows:
(a) The purpose of an award is to afford the surviving
partner a reasonable, independent standard of living, having regard to the
economic consequences of the relationship or its end, as they transition from
the family joint venture towards financial independence.
This is a highly
factual inquiry, focusing on the circumstances of the surviving partner and the
consequences of the relationship
or its end.
(b) An award should factor in any provision made by the deceased to a
partner during the deceased’s lifetime, such as gifts.
It may also be
relevant to inquire into the property the surviving partner receives outside
the estate, such as property passing
by survivorship. Again, these are highly
factual matters and are best considered through the exercise of the
court’s discretion.
- 4.29 In
determining the amount of the award for partners, we propose the court should
take into account:
(a) the extent of the economic disadvantages the
partner suffers from the relationship or its end;34
(b) the duration of the relationship;
(c) the partner’s responsibilities for the deceased’s children;
and
(d) the partner’s current and likely future employment situation.
- 4.30 We expect
it will be rare for the court to make family provision awards to partners as
usually:
(a) the deceased will have left sufficient property to the
surviving partner;
- The
concept of ceasing living together in the relationship is drawn from ss 2A(2),
2AB(2) and 2D(4) of the Property (Relationships)
Act 1976, which define when a
marriage, civil union and de facto relationship end for the purposes of the Act.
For further discussion
about contracting out and settlement agreements see
Chapter 11.
- Family
Proceedings Act 1980, s 39(2). We recognise the difference between this proposal
and s 24 of the Property (Relationships) Act
1976, which provides that an
application must be made under the Act no later than three years after a de
facto relationship has ended.
- Our
preliminary view is that when assessing the extent of the economic disadvantage,
a court should not have regard to any means-tested
assistance an applicant
receives under Part 2 of the Social Security Act 2018, but we are still
considering this matter.
(b) the division of relationship property will enable the
surviving partner to maintain a reasonable, independent standard of living;
or
(c) the economic consequences of the relationship or its end for the
surviving partner are minimal and do not justify an award.
- 4.31 We propose
that the award may take the form of a lump sum payment, transfer of specific
property, periodic payments, or the establishment
of a trust.35 Preference should be made for
a lump sum payment over periodic payments as these give claimants greater
control and make administration
of the estate quicker and less expensive.36
Interface between family provision awards for partners and
FISAs
- 4.32 The
PRA recognises that a just division of relationship property has regard to the
economic advantages or disadvantages to the
partners arising from the
relationship.37 In the PRA
review we affirmed that there were compelling policy reasons to share economic
advantages and disadvantages when a relationship
ends by separation and proposed
a regime of Family Income Sharing Arrangements (FISAs). 38 A FISA would require the
partners to share their income after separation for a specified period (to a
maximum of five years) based
on what the partners earned in the period before
separation and subject to the court’s power to adjust the sharing
arrangement
where necessary to avoid serious injustice. In practice, a FISA
would require the economically advantaged partner to pay the economically
disadvantaged partner an amount to equalise their respective incomes for the
duration of the FISA.
- 4.33 We
recommend against applying FISAs to relationships ended by the death of a
partner for the following reasons:
(a) Although as a matter of
general principle, there is a case for sharing economic disadvantages a partner
(Partner A) suffers through
a FISA when the advantaged partner (Partner B) dies,
the economic advantages Partner B has gained through a relationship cease on
their death and therefore cannot be shared through a FISA. If FISAs were to be
available, a very different approach would need to
be devised to move away from
notionally sharing the deceased partner’s future income.
(b) The evidence we have suggests that in most cases, partners will make
generous provision for each other in their wills.39 It is therefore likely that
if FISAs were available on death, they would be sought in a minority of
cases.
- Compare
s 43(1) of the Draft Succession (Adjustment) Act in Te Aka Matua o te
Ture | Law Commission Succession Law: A Succession (Adjustment) Act
(NZLC R39, 1997) at 116.
- Te
Aka Matua o te Ture | Law Commission Succession Law: Testamentary Claims
– A discussion paper (NZLC PP24, 1996) at
[105].
37 Property
(Relationships) Act 1976, s 1N(c).
- Te
Aka Matua o te Ture | Law Commission Review of the Property (Relationships)
Act 1976 | Te Arotake i te Property (Relationships) Act 1976 (NZLC
R143, 2019) at [10.4]–[10.9].
- For
example, far more notices of option B than option A are filed with te
Kōti Matua | the High Court each year.
In 2019, out of 18,397
applications for probate and letters of administration, 16 surviving
partners filed notices
of electing option A compared with 721 who filed
notices of option B: email from Tāhū o te Ture | Ministry
of Justice to Te Aka Matua o te Ture | Law Commission regarding data
on applications for probate and letters
of administration (11 August
2020); and email from Tāhū o te Ture | Ministry of Justice to Te Aka
Matua o te Ture
| Law Commission regarding data on
(c) Most relationships that end on the death of one partner
occur in older age. 40 Responding to
economic advantages and disadvantages when Partner A is at retirement age is
different to scenarios where the partners
are of working age. In many cases
there will be no economic disparity between the partners. It may also be
difficult to identify
what economic disadvantage Partner A suffers given that,
as they are retired, they cannot suffer a diminished income-earning potential
and they may have benefited from Partner B’s income and accumulation of
assets.
- 4.34 As proposed
above, separated partners who have not settled their relationship property
matters prior to the death of one of the
partners would be eligible to make a
family provision claim on the death of a partner. Our view is that, in such
circumstances, partners
should lose the ability to claim a FISA. This would
depart from our recommendation in the final report of the PRA review where we
said that the death of either partner after separation should not affect the
disadvantaged partner’s (Partner A’s) entitlement
to a FISA.41
- 4.35 Where the
former partners have reached a settlement on a FISA or a court order has been
made, and one of the partners dies during
the period for which the FISA is
notionally payable, we propose that the FISA continues to be payable subject to
the court’s
ability to order an adjustment to the FISA as recommended in
the PRA review. 42
- 4.36 An
application for an adjustment order in these circumstances could be made by
Partner B (the advantaged partner) in circumstances
where Partner A died. Where
Partner B died, the application could be brought by the personal representative
of the deceased’s
estate or by a beneficiary of Partner B’s
estate.
- 4.37 A court
should have the power to make an adjustment order if it is satisfied that
failure to make an adjustment would result
in serious injustice. The court
should have regard to the considerations set out in the proposed new
Relationship Property Act.43
Option Two: family provision awards for children under a
prescribed age
- 4.38 We
propose that the deceased’s children who are younger than a prescribed age
should be able to make a family provision
claim from the estate when they would
receive inadequate provision under the deceased’s will or in an intestacy.
The court
should have discretion to grant an award from the deceased’s
estate to enable the children to be maintained to a reasonable
standard and, so
far as is practical, educated and assisted towards attainment of economic
independence.
probate applications (24 August 2020). Note that a partner
will only file notices with the Registry if administration of
the estate
has not yet been granted. However, it is a strong indication that elections of
option A are relatively rare.
- In
the year ending March 2020, four in every five deaths were people aged 65 years
and older and the median age at death was 80.6
years (78.1 for men and 83.4 for
women): Tatauranga Aotearoa | Stats NZ “Births and deaths: Year ended
March 2020 – Infoshare
tables” (18 May 2020) <www.stats.govt.nz>.
- Te
Aka Matua o te Ture | Law Commission Review of the Property (Relationships)
Act 1976 | Te Arotake i te Property (Relationships) Act 1976 (NZLC
R143, 2019) at [10.138].
- Te
Aka Matua o te Ture | Law Commission Review of the Property (Relationships)
Act 1976 | Te Arotake i te Property (Relationships) Act 1976 (NZLC
R143, 2019) at R55 and [10.115]–[10.121].
- See
Te Aka Matua o te Ture | Law Commission Review of the Property
(Relationships) Act 1976 | Te Arotake i te Property (Relationships) Act
1976 (NZLC R143, 2019) at [10.117] for the list.
- 4.39 Family
provision awards for children would be based on New Zealand’s overarching
obligation under the United Nations Convention
on the Rights of the Child (the
UNCROC) to make a child’s best interests a primary consideration in
matters concerning children.44 The
proposed approach is also consistent with a parent’s duties to maintain
their children consistent with the Care of Children
Act 2004, the Child Support
Act 1991 and section 152 of the Crimes Act 1961.
Definition of “child” for the purpose of a
family provision award
- 4.40 We
propose that a child of the deceased should be widely defined in the new Act
so that it includes natural children, adopted
children and “accepted
children”.45 An
accepted child would be a child for whom the deceased had assumed, in an
enduring way, the responsibilities of a parent.
- 4.41 In deciding
whether the person is an accepted child of the deceased, the court should have
regard to how much responsibility
has been assumed, why this was done, the
period of time during which the deceased maintained the child, guardianship
arrangements
and the responsibility of others for the child.
- 4.42 Our
intention is that any child should have the opportunity to bring a claim where
the deceased had established an ongoing and
nurturing relationship with the
child and became responsible for that child. This might include stepchildren,
tamariki whāngai,46
foster children and grandchildren. The mere fact of the deceased being in a
qualifying relationship with that child’s parent
would not be
sufficient.
- 4.43 In our
preliminary view, unborn children in utero prior to the expiry of the
limitation period47 should
be eligible under the new Act.
- 4.44 It is
possible that this approach would exclude children who are born from gametes and
embryos stored for posthumous reproduction
that have not been implanted in utero
at the time of death. The Advisory Committee on Assisted Reproductive Technology
(ACART) has
undertaken a recent review of guidelines relating to posthumous
reproduction.48 In its
discussion document and during its deliberations, ACART considered that where
the deceased gave consent for their sperm or
eggs to be used to create offspring
for their partner, the wishes of the deceased should be enabled through the
revised guidelines.
If posthumous reproduction is enabled through revised
guidelines, our preliminary view is that a posthumously conceived child should
be eligible for family provision under the new Act, provided the unborn child
was in utero prior to the expiry of the limitation
period.
- The
United Nations Convention on the Rights of the Child, 1577 UNTS 3 (opened for
signature 20 November 1989, entered into force 2 September 1990) sets out basic
rights of children, including the right
to have their “best
interests” treated as a “primary consideration” in actions
concerning them: art 3(1).
- This
is based on the Commission’s proposal in 1997: Te Aka Matua o te Ture |
Law Commission Succession Law: A Succession (Adjustment) Act (NZLC R39,
1997) at 84–85.
46 See
Chapter 8 for a further discussion on whāngai.
47 See Chapter 13 for the proposed time
limits to make a claim.
- Advisory
Committee on Assisted Reproductive Technology (ACART) Posthumous
Reproduction: A review of the current Guidelines for the Storage, Use,
and Disposal of Sperm from a Deceased Man to take into account gametes and
embryos (Manatū Hauora | Ministry of Health, 3 July 2018); and Advisory
Committee on Assisted Reproductive Technology (ACART) Proposed Guidelines for
the Posthumous Use of Gametes, Reproductive Tissue and Stored Embryos: Stage two
consultation document (Manatū Hauora | Ministry of Health, July
2020).
- 4.45 If it is
possible an embryo may be successfully implanted shortly after the expiry of the
limitation period, the court could
exercise its discretion to grant leave to
apply out of time.
Age limit for children eligible to make family provision
claim
- 4.46 We
propose the new Act should define “child” by imposing a maximum age
limit. A claimant child would need to be
the prescribed age or younger at
the time the parent died and would only be able to claim family provision for
the period up
until they turned the prescribed age. We present three
alternatives for the age limit the new Act might adopt: 18, 20 or 25
years.
Eighteen years
- 4.47 Eighteen is
the age that a parent’s guardianship obligations to support their child
ends,49 subject to the requirement to
continue to pay child support if the child is still attending school.50 Eighteen would be consistent
with the definition of a “child” under the UNCROC. Additionally, by
the age of 18 a young
person has typically assumed most of the rights and
responsibilities of an adult.51
For many New Zealanders, this is the age associated with obtaining
“adulthood”.
Twenty years
- 4.48 Twenty is
the legal age of majority in Aotearoa New Zealand, pursuant to the Age of
Majority Act 1970.52 Unless
an enactment or instrument expresses a different age, 20 is deemed to be the age
a person ceases to be a minor.53
We recognise that an age limit of 18 may be too severe a restriction. For
example, many 18-year-olds are still attending secondary
school. If their parent
is still alive, an 18-year-old attending school would qualify for child
support.54
Twenty-five years
- 4.49 Twenty-five
might be justifiable on the basis that young adults are maturing towards adult
responsibility and independence. Some
may be studying or just starting their
working life. The later age would recognise that common societal “markers
of adulthood”
such as marriage, children, home ownership and fulltime
work, are often happening later in life.55
49 Care of Children Act
2004, ss 8 and 15; and Crimes Act 1961, s 152.
50 Child Support Act 1991, s 5(1).
- For
example, at 18 years a person is eligible to vote, purchase alcohol, get married
or enter a civil union without a parent or guardian’s
consent. Also note
the recent change in s 20 of the Trusts Act 2019 lowering the age of majority
from 20 to 18 years for the purposes
of that
Act.
52 Age of Majority Act
1970, s 4(1).
- Age
of Majority Act 1970, s 4(3). For example s 4A of the Administration Act 1969
provides that for the purposes of that Act and
of a will, the age of majority
is 18.
54 Child Support Act
1991, s 5(1).
- Data
obtained from Stats NZ’s Infoshare platform shows that this is the case
for marriage and home ownership, but the data is
less clear in respect of the
average age of having a first child or entering fulltime work: Tatauranga
Aotearoa
| Stats NZ “Marriages, civil unions,
and divorces: Year ended December 2018” (3 May 2019) <www.stats.govt.nz>; Alan
Bentley “Homeownership in New Zealand: Trends over time
and generations” (paper presented to New Zealand Population Conference,
Wellington, 20 June 2019) at 14; and Tatauranga Aotearoa | Stats NZ
“Births and deaths: Year
At this stage of life, young adults may continue to benefit from parental
support. Scientific research has shown that parts of the
brain controlling
decision-making and impulses continue to develop in the early 20s.56 There are also laws
reflecting the expectation that parents will provide financial support to their
children into their early 20s.
For example, until a student reaches 24 years,
their eligibility for a student allowance generally depends on their
parents’
income,57 and
under the Oranga Tamariki Act 1989, a young person is entitled to be supported
to live with a caregiver until they are 21.58
- 4.50 Where age
restrictions are imposed by family provision legislation in comparable
jurisdictions, eligibility may be extended into
the 20s for children who are
undertaking further education.59
Quantifying a family provision award
- 4.51 We
propose that in determining a family provision award for a child, the court must
make the best interests of the child a primary
consideration, taking into
account:60
(a) the
child’s age and stage of development, including the level of education or
technical or vocational training reached;
(b) any other actual or potential sources of support available to the child,
including support from a surviving parent (including
any family provision award
made to that parent that reflects their responsibilities for the child), a
trust, a family provision
award from the estate of another deceased
parent;
(c) the amount of support provided by the deceased to the child during the
deceased’s life or on their death; and
(d) the actual and potential ability of the child to meet their needs.
- 4.52 A question
arises as to whether a court should be required to take into account any social
security assistance an applicant receives.
Section 13 of the FPA requires a
court to disregard assistance, except for “a superannuation benefit, a
miner’s benefit,
or a family benefit”. The exclusion under section
13 has been criticised as being too strict. 61 Our
ended December 2019” (19 February 2020) <www.stats.govt.nz>. Differences in
demographics such as ethnicity and socio-economic status may also have a
significant impact.
- The
bulk of this research is centred in the criminal justice arena: see for example
Peter Gluckman It’s never too early, never too late: A discussion paper
on preventing youth offending in New Zealand (Office of the Prime
Minister’s Chief Science Advisor, 12 June 2018) at [16].
- Student
Allowances Regulations 1998, reg 4. This applies to students who are single and
without a supported child or children.
- Oranga
Tamariki Act 1989, ss 386AAA and 386AAD. A young person under that Act may also
be entitled to advice or assistance up to 25
years: ss 386A, 386B and 447(1)(cc)
and (da).
- For
example, in Victoria a child’s eligibility is extended to 25 years if they
are in full-time education: Administration and Probate Act 1958 (Vic), s 90
definition of “eligible person”. Alberta makes a similar distinction
for children up to the age of 22: Wills and Succession
Act SA 2010 c W-12.2, s
72(b)(v). The Scottish Law Commission proposed an option that dependent children
should be entitled to claim
from their deceased parent’s estate where the
parent owed an obligation of aliment immediately before death. This was
therefore
applicable to those aged under 18 years or under
25 years
if engaging in higher education: see Scottish Law Commission Report on
Succession (Scot Law Com No 215, 2009) at [3.67]–[3.70]; and Family
Law (Scotland) Act 1985.
- Section
28(3) of the Draft Succession (Adjustment) Act in Te Aka Matua o te Ture | Law
Commission Succession Law: A Succession (Adjustment) Act (NZLC R39,
1997) at 86.
61 See the
criticism of s 13 of the FPA in Re Hollick (deceased) HC Christchurch
CP57/87, 18 July 1990 at 27–28.
preliminary view is that a court should not generally take into account any
means-tested assistance an applicant receives under Part
2 of the Social
Security Act 2018, but we are still considering this matter.
- 4.53 The award
may take the form of a lump sum, transfer of specific property, periodic
payments or the establishment of a trust.
- 4.54 We propose
that a family provision award in favour of a child should be presumed to be
payable to the guardian of the child,
except where the child is 18 years or
older or the court considers it inappropriate.62 This would enable money
to be used for the support of the child during their childhood. Paying
money to the child’s
guardian would also be consistent with the Child
Support Act. Lump sum payments should be preferred over periodic payments for
the
reasons given above.
Option Three: family provision awards for disabled
children
- 4.55 In
addition to Options One and Two, the new Act could provide that disabled
children of any age are eligible for family provision.
An award would recognise
that a child in this category who does not have sufficient resources to enable
them to maintain a reasonable
standard of living should receive provision from
the estate.
Definitions in this category
- 4.56 Option
Three would apply to the deceased’s disabled children of any age. It would
include “accepted children”
as defined above.
- 4.57 Disability
should be defined broadly and consistently with Article 1 of the Convention on
the Rights of Persons with Disabilities
(CRPD) so that any long-term physical,
mental, intellectual or sensory impairments are included.63 Eligibility under this
category would require that the disability reduces the person’s
independent function to the extent that
the person is unable to earn a
livelihood.64
- 4.58 In our
preliminary view, further criteria would need to be met to limit the
interference with the deceased’s testamentary
freedom and to recognise
that the general (at least implied) policy of New Zealand’s welfare and
support law is that a parent’s
responsibility for
their
62 The court may, for
example, order that a trust is established in favour of the child.
- Article
1 of the United Nations Convention on the Rights of Persons with Disabilities,
2515 UNTS 3 (opened for signature 30 March
2007, entered into force 3 May 2008)
(the CRPD) states that “[p]ersons with disabilities include those who have
long-term physical,
mental, intellectual or sensory impairments which in
interaction with various barriers may hinder their full and effective
participation
in society on an equal basis with others.” Consideration
should be given to the adoption of the broader definition in s 21(1)(h)
of the
Human Rights Act 1993. Aotearoa New Zealand ratified the CRPD on 25 September
2008.
- Internationally,
it is not uncommon for family provision legislation to prioritise disabled
children of any age alongside minor children:
Administration and Probate Act
1958 (Vic), s 90 definition of “eligible person”; Wills and
Succession Act SA 2010 c W-12.2, s 72(b)(iv) definition of “family
member”;
The Dependants Relief Act CCSM 1990 c D37, s 1 definition of
“dependant”; The Dependants’ Relief Act RSS 1978 c
D-25, s 2
definition of “dependant”; Dependants of a Deceased Person Relief
Act RSPEI 1974 c D-7, s 1 definition of “dependant”;
Dependants
Relief Act RSY 2002, c 56, s 1 definition of “dependant”;
Dependants Relief Act RSNWT 1988 c D-4, s 1 definition
of
“dependant”; Dependants Relief Act RSNWT (Nu) 1988 c D-4, s 1
definition of “dependant”; and Louisiana
Constitution 1974, art XII
§ 5. The term “livelihood” is used in Alberta, Saskatchewan,
Prince Edward Island, Yukon,
Northwest Territories and
Nunavut.
child ends when the child is no longer a minor, even if that child is
disabled.65 Eligibility would
therefore also require that:
(a) the child’s disability
occurred prior to reaching the prescribed age in Option Two; and/or
(b) the child was wholly or partly dependent on the deceased for support
immediately prior to death.
Quantifying a family provision award to a disabled
child
- 4.59 In
making a family provision award to a disabled child, we suggest the court
should take into account:
(a) the child’s age and stage of
development, including the level of education or technical or vocational
training reached;
(b) the possibility of recovery from disability;
(c) any other actual or potential sources of support available to the child,
including support from a surviving parent (including
any family provision award
made to that parent that reflects their responsibilities for the child), a
trust, a family provision
award from the estate of another deceased
parent;
(d) the amount of support provided by the deceased to the child during the
deceased’s life or on their death; and
(e) the actual and potential ability of the child to meet their needs.
- 4.60 Like Option
Two, a question arises as to whether a court should be required to take into
account any social security assistance
an applicant receives. Our preliminary
view is that a court should not generally take into account any means-tested
assistance an
applicant receives under Part 2 of the Social Security Act 2018,
but we are still considering this matter.
- 4.61 Again, the
court would have discretion as to the manner of award but a lump sum payment
should be preferred for the reasons discussed
above.
Reservations about this option
- 4.62 This
third option is based on the view that the estate rather than the state should
be responsible for supporting disabled adult
children of the deceased. This may
be inconsistent with contemporary attitudes that accept it is
society’s collective
responsibility to support people with disabilities.
The approach would also be at odds with the obligations the deceased
would have had while alive to maintain their disabled children. For these
reasons we have reservations about whether to recommend
this option for
reform.
- See
for example Care of Children Act 2004, ss 8 and 15; Child Support Act 1991, s 5;
and Social Security Act 2018, ss 23, 78–83
and 84–89 and sch
2.
Option Four: recognition awards for children of all
ages
- 4.63 This
fourth option is to allow children of the deceased, regardless of their age
or needs, to make a claim for a “recognition
award” to recognise
the importance of the parent-child relationship and to acknowledge that the
child belongs to the family.66
It would essentially continue the courts’ existing approach to
interpreting “support” under the FPA but it would
make the
objective more transparent.
- 4.64 We propose
that a family provision award to a surviving partner, child under the prescribed
age or disabled child would be prioritised
over a recognition award.67 A child entitled to a family
provision award may also be entitled to a recognition award.
Definitions in this category
- 4.65 An
eligible child would be a child of any age and would include “accepted
children” as defined above.
Quantifying a recognition award
- 4.66 The
court should award the minimum amount68 that is appropriate to
recognise that the child belongs to the family if the deceased’s will
fails to do so or if the child
receives nothing on intestacy.69
- 4.67 In
determining whether to make an award, and the amount, the court should have
regard to:70
(a) the
deceased’s will;
(b) any evidence of the deceased's reasons for making the dispositions
in the deceased’s will (if any);
(c) any other evidence of the deceased's intentions in relation to providing
for the child;
(d) any provision that the deceased made for the child either during the
deceased’s lifetime or from the estate;
(e) the size and nature of the estate;
(f) the effect an order would have on the amounts received from the deceased
by other beneficiaries or other claimants; and
- Where
comparable jurisdictions allow for recognition awards, these are not separated.
More commonly, they reflect the approach currently
taken in the FPA to refer to
maintenance and support: see for example Succession Act 1981 (Qld), s 41(1);
Administration and Probate Act 1958 (Vic), s 91(4)(b); and Testator’s
Family Maintenance Act 1912 (Tas), s 3(1).
- This
may mean that nothing is awarded for the recognition of a child if the estate is
small and there are other competing claimants.
For further discussion about the
priorities of competing claims see Chapter 9.
- This
principle of awarding only the minimum appropriate to remedy the breach has been
recognised by the courts in FPA proceedings:
see for example Little v Angus
[1981] 1 NZLR 126 (CA) at 127; and Williams v Aucutt [2000] NZCA 289; [2000] 2 NZLR
479 (CA) at [70].
- An
accepted child may not receive a share of the intestate estate under both the
current law and our proposals in Chapter 6.
- These
criteria are adapted from principles established in Aotearoa New Zealand case
law and from comparable international legislation:
see for example s 91A(1) of
the Administration and Probate Act 1958 (Vic); and s 60(1)–(2) of the
Succession Act 2006 (NSW).
(g) gross misconduct on behalf of the child that might reduce
provision from the deceased’s estate.71
Reservations about this option
- 4.68 In
our view, because this option largely continues the current law, it does little
to address the issues we have identified earlier
in the chapter. We note that
around 56 per cent of respondents to the Succession Survey supported adult
children being allowed to
challenge a will and receive a share of the estate
when presented with a scenario where the estate had been left either to charity
or the deceased’s second wife.72 However, we do not consider
this is a sufficiently strong showing of public support for this option to
outweigh the disadvantages
of this option. This option would be a discretionary
version of forced heirship, 73
and in our early engagement, legal practitioners were overwhelmingly
opposed to a system of forced heirship in Aotearoa New Zealand.
We consider the
existing uncertainties regarding the amount of an award would persist. Lastly,
we are mindful of the potential impacts
disputes around recognition claims would
have on families. Parties would have to contest the applicant’s worthiness
to be recognised
as a family member. For these reasons, we do not favour Option
Four as a recommendation for reform.
Other considerations
Parents
- 4.69 Our
preliminary view is that parents of the deceased should not be eligible
claimants under the new Act. Parents have been eligible
claimants since 1943 but
there have been very few cases involving a claimant parent. Although many
children will provide for their
ailing parents in later life, this is not a
legal requirement, nor is it reliable to infer that, because someone was
providing support
to a person when they died, they would have wanted this
support to be continued. The Succession Survey respondents were divided about
whether a parent should be able to challenge their child’s will and get a
share of the estate but more than half (52 per cent)
said this should not be
allowed.74 Children concerned
about their parents’ future welfare should be encouraged to provide for
them in their will. Under our proposals,
parents may be eligible to make a
contribution claim,75 for example, where
a parent paid for improvements to their child’s home intending that they
would live with and be cared for
by that child.
- Compare
s 5 of the Family Protection Act 1955; and s 18A of the Property (Relationships)
Act 1976. In our view, a high threshold is
desirable to avoid family members
presenting disparaging and likely irrelevant evidence about each other.
- Ian
Binnie and others Entitlements to deceased people’s property in New
Zealand: Public attitudes and values – A general population survey
(Te Whare Wānanga o Ōtākou | University of Otago, research
report to the Michael and Suzanne Borrin Foundation, Dunedin,
April 2021) at
figure 11.
- This
has been a criticism that legal commentators have made of the current law: see
Richard Sutton and Nichola Peart “Testamentary
Claims by Adult Children
– The Agony of the Wise and Just Testator” [2003] OtaLawRw 6; (2003) 10 Otago L Rev 385
at
403. Note that Richard Sutton was a Commissioner during the 1990s
succession review.
- Ian
Binnie and others Entitlements to deceased people’s property in New
Zealand: Public attitudes and values – A general population survey
(Te Whare Wānanga o Ōtākou | University of Otago, research
report to the Michael and Suzanne Borrin Foundation, Dunedin,
April 2021) at
figure 4.
75 See Chapter
5.
Adult stepchildren of a surviving partner
- 4.70 On
occasion an adult child may miss out on an inheritance from their parent if the
parent prefers the interests of a subsequent
partner over the child. This may
seem particularly unfair if the child had an expectation to inherit and the
deceased, in leaving
their estate to their partner, intended for the partner to
provide for the deceased’s children when they eventually died but
for
whatever reason this did not happen. Under the current law, the adult child is
unlikely to have any legal recourse against their
stepparent’s eventual
estate.76 Our proposals do
not address this scenario.
SUMMARY OF PROPOSALS FOR REFORM
- For
the purpose of family provision and recognition awards, a child of the deceased
would include children for whom the deceased had assumed, in an enduring
way, the responsibilities of a parent.
- Option One:
family provision awards for partners. A surviving partner who has
insufficient resources to maintain a reasonable, independent standard of living,
having regard to the economic consequences of the
relationship or its end for
that partner, should be entitled to a family provision award from the estate to
transition from the family
joint venture.
- Separated
partners who have not entered a valid settlement agreement should remain
eligible for an award provided that no longer than two years have elapsed
between the partners ceasing to live together in
the relationship and the death
of one partner.
- In
determining a family provision award for a partner, the court should take
specific factors into account.
- Where one
partner dies while a Family Income Sharing Arrangement (FISA) is payable
to the surviving partner, the FISA should continue to be payable subject to the
court’s ability to order an adjustment. Otherwise,
FISAs should not be
available in relationships ended by the death of a partner.
- Option Two:
family provision awards for children under a prescribed age. A child of
the deceased should be able to make a claim for a family provision award from
the estate to enable the child to be maintained to
a reasonable standard, and so
far as is practical, educated and assisted towards attainment of economic
independence.
- A child
would be defined in the new Act according to an age limit. Three options
are presented: 18, 20 or 25 years.
- In
determining a family provision award for a child, the court should take
specific factors into account.
- Option
Three: family provision awards for disabled children. A disabled child of
the deceased should be able to make a claim for a family provision award
from the estate where the child does not have sufficient resources
to enable
them to maintain a reasonable standard of living.
- The
stepchild might be entitled to claim under the FPA if they were being maintained
by the stepparent: Family Protection Act 1955,
s 3(1)(d). See also the
definition of “stepchild” in s
2(1).
|
|
Q13
|
Do you agree with the issues we have identified?
|
|
Q14
|
Are there other issues with the law we have not identified?
|
|
Q15
|
What are your views on the proposals for reform?
|
|
Q16
|
Do you have any other suggestions for reform?
|
|
- Disability
should include any long-term physical, mental, intellectual or sensory
impairments that have reduced the person’s independent function to the
extent that they are unable to earn a livelihood.
- A disabled
adult child should be eligible if they had been wholly or partly dependent
on the deceased for support immediately prior to death. In the absence of
this, the child’s disability must have arisen prior
to reaching the
prescribed age in Option Two.
- In
determining a family provision award for a disabled child, the court should take
specific factors into account.
- Option
Four: recognition awards for children of all ages. A child of the deceased
should be eligible for provision from the estate to recognise the importance of
the parent child relationship and to acknowledge
that the child belongs to the
family if the deceased’s will fails to do so or the child receives nothing
on intestacy.
- The court
should award the minimum amount that is appropriate to recognise the
parent-child relationship and that the child belongs to the family.
- In
determining whether to make an award, and the amount, the court should
take specific factors into account.
- Family
provision awards would take priority over recognition awards.
QUESTIONS
CHAPTER 5
Contribution
claims
IN THIS CHAPTER, WE CONSIDER:
proposals for
reform.
the issues with the current law; and
•
•
- the claims a
person who has provided a benefit to the deceased or their estate
can
bring against an estate;
THE CURRENT LAW
- 5.1 Sometimes,
people will provide benefits to someone who later dies. In other instances,
after someone has died, people will
provide benefits to the deceased
person’s estate. These benefits could include money, work, property, or
services. Sometimes,
these benefits are provided in the expectation that the
person providing them (a contributor) will receive something in return
from
the deceased’s estate. There are several claims a contributor can make
against an estate.
Contract
- 5.2 If
there is a contract between the contributor and the deceased, the contributor
could enforce that contract against the estate.
Constructive trust
- 5.3 A
contributor might claim a constructive trust over the estate. To establish a
constructive trust, a contributor must show:1
(a) contributions, direct or
indirect, to the deceased’s property;
(b) the expectation of an interest therein;
(c) that such an expectation is a reasonable one; and
(d) that the legal owner of the property should reasonably expect to yield
the claimant an interest.
1 Lankow v Rose
[1994] NZCA 262; [1995] 1 NZLR 277 (CA) at 294.
- 5.4 The amount
of an award will be the value of the contributions that give rise to a
constructive trust or the particular property
if it is appropriate.2
Estoppel
- 5.5 A
contributor may claim estoppel by showing that the deceased encouraged them to
expect that they would receive an interest in
the recipient’s property and
that they provided the benefit in reliance on this expectation. To establish
estoppel, the contributor
must show:3
(a) a belief or expectation
has been created or encouraged through some action, representation, or omission
to act by the legal owner
of the property;
(b) the belief or expectation has been reasonably relied upon by the
contributor;
(c) detriment will be suffered if the belief or expectation is departed from;
and
(d) it would be unconscionable for the party against whom the estoppel is
alleged to depart from the belief or expectation.
- 5.6 The amount
and form of an award is largely discretionary and can respond to the
circumstances of the case.4
Unjust enrichment
- 5.7 Although
the law is continuing to develop in this area, te Kōti Matua | the High
Court has held that claims in Aotearoa New
Zealand may be founded on unjust
enrichment.5 To establish
unjust enrichment the contributor must show:
(a) proof of the
recipient’s enrichment by receipt of a benefit;
(b) a corresponding deprivation by the contributor; and
(c) the absence of any “juristic reason” for the enrichment
(meaning there was no legal reason for the enrichment, like
a contract).
- 5.8 The amount
of an award is the gain the recipient made at the contributor’s expense.6 A remedy may be proprietary
(by way of a constructive trust) or monetary (by way of a personal remedy).7
Quantum meruit
- 5.9 Contributors
might make a claim for quantum meruit where the recipient requested or freely
accepted services without paying for
them and the recipient knew that
the
2 Lankow v Rose
[1994] NZCA 262; [1995] 1 NZLR 277 (CA) at 286.
- See
James Every-Palmer “Equitable Estoppel” in Andrew S Butler (ed)
Equity & Trusts in New Zealand (2nd ed, Thomson Reuters, Wellington,
2009) 601 at 613–621; and Wilson Parking New Zealand Ltd v Fanshawe 136
Ltd [2014] NZCA 407, [2014] 3 NZLR 567 at
[44].
4 Carroll v Bates
[2018] NZHC 2463, [2018] NZAR 1570 at [74].
- Enright
v Enright [2019] NZHC 1124; and Young v Hunt [2019] NZHC 2822. See
also Peter Twist, James Palmer and Marcus Pawson Laws of New Zealand
Restitution (online ed) at
[9].
6 Peter Twist, James
Palmer and Marcus Pawson Laws of New Zealand Restitution (online ed) at
[2].
7 Peter Twist, James Palmer and Marcus
Pawson Laws of New Zealand Restitution (online ed) at [2].
contributor expected to be reimbursed for those services. 8 To establish a claim for
quantum meruit, a contributor must show that:9
(a) the recipient asked
the contributor to provide services or freely accepted services provided by the
contributor; and
(b) the recipient knew (or ought to have known) that the contributor expected
to be reimbursed for those services.
- 5.10 The award
amount will be the reasonable cost of providing the services.10
The TPA
- 5.11 When
the deceased promised to reward the contributor in their will, there is a
statutory remedy. The contributor may claim the
reasonable value of the work or
services from the estate under the Law Reform (Testamentary Promises) Act 1949
(TPA). To establish
a TPA claim, the contributor must show:11
(a) the contributor rendered
services to, or performed work for, the deceased during the
deceased’s lifetime;
(b) the deceased either expressly or impliedly promised to reward the
contributor;
(c) there is a nexus between the services rendered or work performed and the
promise; and
(d) the deceased failed to make the promised testamentary provision or to
otherwise remunerate the contributor.
- 5.12 The award
amount must be reasonable in all the circumstances of the case having regard to
certain factors listed in section 3(1)
of the TPA.12
ISSUES
- 5.13 The
main issue with the current law is its complexity and uncertainty. A contributor
can potentially bring several claims against
an estate in respect of the
same contributions, each with different inquiries and awards available. This
can lengthen litigation
and increase costs. It also makes predicting outcomes
and awards difficult, which can discourage parties from settling claims
out
of court.
- 5.14 Some of the
law, particularly unjust enrichment and quantum meruit, is developing. Cases
have taken different approaches when
deciding the availability and elements of
the claims. In particular, there is a debate as to whether unjust enrichment
is a separate
and broad cause of action that encompasses quantum meruit cases.
13 This debate may
have
8 See for example
Tervoert v Scobie [2020] NZHC 1039.
9 Morning Star (St Lukes Garden
Apartments) Ltd v Canam Construction Ltd CA90/05, 8 August 2006 at [50].
10 Electrix Ltd v Fletcher
Construction Co Ltd (No 2) [2020] NZHC 918 at [96]–[100].
11 Law Reform (Testamentary Promises)
Act 1949, s 3.
12 Law Reform (Testamentary Promises)
Act 1949, s 3(1); and Re Welch [1990] 3 NZLR 1 (PC) at 6.
- In
Enright v Enright [2019] NZHC 1124 and Young v Hunt [2019] NZHC
2822 the Court held that unjust enrichment was a separate cause of action.
However, the Court in Tervoert v Scobie [2020] NZHC 1039, relying on the
earlier case Villages of New Zealand (Pakuranga) Ltd v Ministry of Health
HC Auckland CIV-2003-404-5143, 6 April 2005, held that
unjust
practical consequences for claimants. If the foundation of quantum meruit is
unjust enrichment, then the focus of the inquiry will
be ensuring that the
recipient gives up any benefits unjustly received. However, if it is not, then
the focus of the inquiry may
be ensuring that the reasonable costs of providing
the services by the contributor are returned to them.14
- 5.15 Life
expectancy in Aotearoa New Zealand is progressively increasing and is projected
to continue.15 The average
age of the population is going up as the baby boomer generation (someone born in
the years 1946—1965) reaches the
65+ age bracket.16 As life expectancy increases,
more people may need to rely on informal care arrangements.17 Because state provision for
carers is limited, the rise in these arrangements may lead to more
contribution claims. 18
Additionally, were our preferred proposals for reform regarding family
provision implemented, meaning adult children of a deceased
could not claim
family provision, more adult children may bring contribution claims if they
consider they have not been adequately
provided for in their parent’s
will or under the intestacy regime.
PROPOSALS FOR REFORM
- 5.16 We
consider that the new Act should address contribution claims. They may form a
substantial part of the rights a person may
have against an estate. People
should be able to refer to one statute to understand the extent of their rights
in respect of an estate.
We present two options for reform. Our preliminary view
is that a comprehensive statutory cause of action is desirable.
- 5.17 In Chapter
8 we consider how tikanga might respond to a situation where someone has
contributed to a person who has since died
or their estate and whether our
proposed cause of action is consistent with tikanga.
Option One: a comprehensive statutory cause of action for
contribution claims
- 5.18 The
first option we propose is to establish a single and comprehensive statutory
cause of action in place of the TPA and the
other causes of action described
above for contributions to the deceased or the estate. This approach should
assist claimants and
personal representatives by making the law more accessible.
The proposed cause of
enrichment was not a separate cause of action. In Electrix
Ltd v Fletcher Construction Company Ltd (No 2) [2020] NZHC 918 the Court
preferred to decide the case on quantum meruit principles, holding that unjust
enrichment did not provide a “satisfactory
unifying conceptual
foundation”: at [96].
- See
Electrix Ltd v Fletcher Construction Co Ltd (No 2) [2020] NZHC 918 at
[96]–[100]; and Morning Star (St Lukes Garden Apartments) Ltd v Canam
Construction Ltd CA90/05, 8 August 2006 at
[44].
15 Tatauranga Aotearoa
| Stats NZ Demographic trends: implications for the funeral industry
(January 2016) at 4–5.
16 Tatauranga Aotearoa | Stats NZ
Demographic trends: implications for the funeral industry (January
2016) at 4–5.
- One
study concludes that large increases in the need for daily and weekly care are
expected by 2026: Ngaire Kerse and others Intervals of care need: need for
care and support in advanced age – LiLACS NZ (Te Whare Wānanga o
Tāmaki Makaurau | University of Auckland, 21 April 2017) at
11.
18 See Te Manatū
Whakahiato Ora | Ministry of Social Development A Guide for Carers |
He Aratohu mā ngā Kaitiaki
(February 2021).
action is based on the Commission’s recommendation in its 1990s succession
review although we propose some modifications.19
- 5.19 Our
proposal is reflected in draft provisions set out at the appendix to the end of
this chapter, which have been prepared with
the assistance of Parliamentary
Counsel.
- 5.20 The cause
of action should be available when a person has provided a benefit to the
deceased or the estate. A benefit should
be defined in the new Act to include
money, property, work and services.
- 5.21 To exclude
frivolous claims or contributions that might be seen as part of “normal
family life”, benefits that did
not involve a significant contribution of
time, effort or money should be excluded. What is “significant”
should not
be defined for the purposes of this claim due to the variable nature
of benefits that are likely to be provided. It is better for
the court to decide
whether to grant a remedy with all the circumstances of a case before it.
- 5.22 We propose
that a contributor may apply to the court to seek compensation in respect of a
benefit that the contributor provided
to the deceased or the estate
if:
(a) the benefit was of value; and
(b) the contributor has not been fully compensated for providing the
benefit.
- 5.23 In
determining whether the benefit is of value, the court should take into account
the monetary value of the contribution and
also benefits that may have been of
value or assistance to the deceased. We propose the new Act should provide
that a benefit
should be considered to be of value if
it:
(a) ensured an appropriate quality of life for the deceased
person;
(b) maintained or increased the value of the deceased person’s
property;
(c) was provided at the request of the deceased person; or
(d) otherwise provided substantial assistance or advantage to the deceased
person.
- 5.24 Similarly,
we propose the new Act should provide that a benefit is of value to the estate
if it:
(a) maintained or increased the value of the estate;
(b) was a payment in respect of an outgoing on the deceased person’s
estate; or
(c) in any other way relieved the estate from expenditure.
- 5.25 In these
circumstances, we propose that the court may grant compensation to the
contributor when it considers it just and reasonable.
In determining whether it
is just and reasonable, the new Act should state that it is not just and
reasonable if:20
(a) the
contributor provided the benefit to fulfil a contractual, legal or equitable
obligation; or
(b) the contributor did not intend to receive any reward for the
contribution.
- Te
Aka Matua o te Ture | Law Commission Succession Law: A Succession
(Adjustment) Act (NZLC R39, 1997) at 16–17 and 92–99.
- These
factors are based on Canadian jurisprudence on unjust enrichment: see Garland
v Consumers’ Gas Co 2004 SCC 25, [2004] 1 SCR 629 at
[38]–[44].
- 5.26 In
addition, a contributor should not recover if the deceased informed the
contributor, or it was agreed between the deceased
and the contributor, or it
was otherwise clear from the circumstances, that no compensation would be given
in return for the benefit.
- 5.27 If the
contribution of the benefit in question has been taken into account through a
relationship property division, compensation
should not be available to the
contributor.
- 5.28 Where the
court considers it just and reasonable to award compensation, the court should
have power to grant a monetary award
to be met rateably from the estate. In
determining the value of a compensation award, the court should have regard
to:
(a) any arrangement or understanding between the contributor and
the deceased person;
(b) the value of the benefit to the deceased person or the deceased
person’s estate;
(c) the period of time that has elapsed since the benefit was provided and
the extent to which the benefit has diminished in value
or relevance over that
period;
(d) any extent to which the deceased altered their position after receiving
the benefit in the reasonably held belief that no compensation
was payable in
respect of the benefit;21
(e) the costs to the contributor in providing the benefit;
(f) any implications that the award may have for any other persons; and
(g) any other circumstances the court considers relevant.
- 5.29 The court
should also have power to order the transfer of specific property. When the
court grants an award of specific property
to the contributor, the court should
have power to grant priority over any claims by unsecured creditors of the
estate. This is to
be consistent with equitable remedies where the court may
grant a contributor priority by recognising their property interest in
the asset
they have contributed towards.
- 5.30 We propose
the cause of action would codify the law relating to claims under
constructive trusts, estoppel, unjust enrichment,
quantum meruit and any other
restitutionary relief that might otherwise arise from contributions to a
deceased or their estate. Because
the precise rules of these claims and how they
relate to one another are subject to debate, we favour clarifying the law in a
single
cause of action expressed in one place. The new Act should
therefore provide that no claim other than under the Act can
be brought in
respect of these claims or otherwise. Where a contributor brings proceedings in
contract against an estate in respect
of a benefit they have provided, we
propose the court should be able to order that the claim be held in the same
manner as
a claim under this proposed new cause of action.
- 5.31 We
recognise there is likely to be some initial uncertainty about how the cause of
action is to apply. In our view, this uncertainty
is preferable to the
uncertainty that exists under the current law. It is also advantageous that
contributors, personal representatives
and beneficiaries are able to turn to a
single statute to see how a court will determine a contribution
claim.
- This
reflects the common law “change of position” defence. It also
reflects the defence to a restitutionary claim that
“the defendant’s
position has so changed that it would be inequitable in all the circumstances to
require restitution
in whole or in part”: National Bank of New Zealand
Ltd v Waitaki International Processing (NI) Ltd [1999] 2 NZLR 211 (CA) at
219.
|
|
Q17
|
Do you agree with the issues we have identified?
|
|
Q18
|
Are there other issues with the law we have not identified?
|
|
Q19
|
What are your views on the proposals for reform?
|
|
Q20
|
Do you have
|
any other suggestions for reform?
|
|
Option Two: retain the TPA cause of action within the new
statute
- 5.32 An
alternative option for reform is to retain the TPA cause of action within the
new Act and leave the remaining claims to operate
outside the statute. This
would provide the opportunity to modernise the drafting of the TPA but leave the
law substantively the
same. This approach has the advantage of retaining the
existing case law and commentary on the TPA and the other areas of law. However,
litigants would continue to face the difficulty of dealing with multiple
potentially overlapping claims arising from law outside
the new
Act.
SUMMARY OF PROPOSALS FOR REFORM
- Option
One: a codification of the current claims a contributor may make against
an estate into a single statutory cause of action. The remedy would apply
when a contributor has provided a benefit to the deceased
or their estate and
the court considers it is just and reasonable that compensation be made to the
contributor; or
- Option Two:
inclusion of the TPA cause of action within the new Act, updated to modern
drafting standards.
QUESTIONS
APPENDIX:
PROVISIONS RELATING TO OPTION ONE – A STATUTORY CAUSE OF ACTION FOR
CONTRIBUTION CLAIMS
CHAPTER 6
Intestacy
entitlements
IN THIS CHAPTER, WE CONSIDER:
- the statutory
rules for distributing intestate estates; and
- issues with the
current law and proposals for reform.
THE CURRENT LAW
- 6.1 Intestacy
occurs when the whole or part of the deceased’s estate is not disposed of
by will. Total intestacy arises where
the deceased makes no effective
testamentary disposition of any of their property, such as where they left no
will or their will
is invalid1 or the
beneficiaries died before the deceased. Partial intestacy occurs where the
deceased fails to dispose of some of their property.
- 6.2 Dying
intestate is relatively common in Aotearoa New Zealand. It is estimated that
around half of all adults (aged 18 or over)
do not have a will.2 Every year, around one in 10
of the applications for administration filed with the te Kōti Matua | the
High Court (the High Court)
is for an intestate estate.3
- 6.3 The total
administration applications filed with the High Court represent around half the
number of registered deaths each year.4 Those individuals for whom an
administration
1 Wills Act 2007, s 7.
- The
Commission for Financial Capability surveyed 11,069 people online in 2017. 5,222
respondents (47.2 per cent) stated they had a
legal will, 5,343 stated they did
not (48.3 per cent), and 504 were unsure (4.6 per cent): Commission for
Financial Capability Financial Capability Barometer Survey 2017.
Fifty-three per cent of respondents to the Succession Survey said they had a
will: Ian Binnie and others Entitlements to deceased people’s property
in New Zealand: Public attitudes and values – A general population
survey (Te Whare Wānanga o Ōtākou | University of Otago,
research report to the Michael and Suzanne Borrin Foundation, Dunedin,
April
2021) at [156] and table 5.
- For
example, based on statistics extracted from the High Court’s case
management system, 18,465 applications for
probate, letters to administer or
elections to administer were filed in 2019. Of these, 1,454 were for
letters of administration
and another 318 were letters of administration with
will annexed: email from Tāhū o te Ture | Ministry of Justice
to
Te Aka Matua o te Ture | Law Commission regarding data on applications
for probate and letters of administration filed
with the court annually
between 2015 and 2019 (11 August 2020).
- In
2019, 18,465 administration applications were made and there were 33,774
registered deaths of adults aged 18 and over (55 per
cent). In 2018, there
were 17,561 applications and 32,799 deaths (54 per cent) and in 2017 there were
18,121 applications and 32,937
deaths (55 per cent): email from
Tāhū o te Ture | Ministry of Justice to Te Aka Matua o te
Ture
| Law Commission regarding data on applications for probate and
letters of administration filed with the court annually
application is not filed probably leave estates that do not require a formal
grant of administration in order to distribute the assets
of those estates. 5 It is likely that a
significant proportion of those individuals died intestate.
- 6.4 Certain
demographic groups are less likely to make wills. Rates of will-making are
lower in Māori, Pacific peoples
and Asian communities.6 Will-making is often
associated with significant life events such as buying a home or having a child.
Rates of will-making also increase
with age so the intestate population is
generally expected to be younger than those who die with a will.7
In the absence of a will, there needs to be a system of rules
for distributing the deceased’s property
- 6.5 Section
77 of the Administration Act 1969 sets out the rules for distributing intestate
estates consisting of all property other
than Māori land.8 Broadly, the rules prioritise
the deceased’s partner and children, followed by parents, siblings,
grandparents, aunts and uncles
(by blood) and cousins. When none of the
specified family members are alive to succeed, the Crown will take the estate as
bona vacantia
(ownerless goods). The Crown may provide for dependants of the
deceased or other persons9
for whom the deceased might reasonably have been expected to make
provision. We summarise the rules under section 77 in the following
diagram.
between 2015 and 2019 (11 August 2020). Total deaths figures
have been sourced from the Infoshare platform, available at Tatauranga
Aotearoa
| Stats NZ “Births and deaths: Year ended March 2020 – Infoshare
tables” (18 May 2020)
<www.stats.govt.nz>.
- Section
65 of the Administration Act 1969 provides that certain assets with a value not
exceeding the prescribed amount may be paid
to specified individuals without
requiring administration of the estate to be obtained. The prescribed amount is
currently set at
$15,000: Administration (Prescribed Amounts) Regulations 2009,
reg 4.
- In
response to the Succession Survey 41 per cent of Māori respondents, 24 per
cent of Pacific respondents and 21 per cent of
Asian respondents said they had a
will: Ian Binnie and others Entitlements to deceased people’s property
in New Zealand: Public attitudes and values – A general population
survey (Te Whare Wānanga o Ōtākou | University of Otago,
research report to the Michael and Suzanne Borrin Foundation, Dunedin,
April
2021) at table 5. The Commission for Financial Capability Financial
Capability Barometer Survey 2017 found that of the 1,602 respondents who
identified as Māori, 498 said they had a will (31.1 per cent) compared with
4,098 respondents
who identified as European/Caucasian (55.2 per cent).
- The
Succession Survey found that age was the primary influence on having a will: Ian
Binnie and others Entitlements to deceased people’s property in New
Zealand: Public attitudes and values – A general population survey
(Te Whare Wānanga o Ōtākou | University of Otago, research
report to the Michael and Suzanne Borrin Foundation, Dunedin,
April 2021) at
[159]. In the Commission for Financial Capability Financial Capability
Barometer Survey 2017, nearly all (97.3 per cent) European/Caucasian
respondents aged 75+ had a will but only two thirds (64.4 per cent) aged
50–54
had a will. The rate of will-making also increased with age for
Māori respondents (75 per cent of Māori respondents aged
75+ had a
will compared with 29.8 per cent of Māori respondents aged 50–54:
Commission for Financial Capability Financial Capability Barometer Survey
2017.
- Succession
to Māori freehold land on intestacy is determined according to ss 109 and
109A of Te Ture Whenua Maori Act 1993.
- Under
s 29 of the Interpretation Act 1999, “person” includes a corporation
sole, a body corporate and an unincorporated
body.
SUMMARY OF THE DISTRIBUTION OF INTESTATE ESTATES UNDER SECTION
77 OF THE ADMINISTRATION ACT 1969
Partner
takes:
- personal
chattels
- prescribed
amount ($155,000)
- one-third of
what remains
Children/descendants take the other two- thirds of what remains
START
Surviving partner?
Yes
No Yes
Children or descendants?
Yes
Children or their descendants take whole estate
Children or descendants?
Parents take whole estate
No No
Yes
Parents?
No
Parents?
Partner takes whole estate
No
Yes
Siblings or their descendants (nieces, nephews)?
Partner takes:
- personal
chattels
- prescribed
amount ($155,000)
- two-third of
what remains
Parents take the other third of what remains
Siblings or their descendants take whole estate
Yes
- Maternal
grandparents or descendants take half
- Paternal
grandparents or descendants take half
Grandparents?
Yes
- Maternal
aunts/uncles or descendants take half
- Paternal
aunts/uncles or descendants take half
If no descendants on one side of family, the other side takes whole
estate
No
Aunts / uncles or descendants (cousins)?
Yes
No
Everything passes to Crown
ISSUES
- 6.6 The
intestacy provisions in the Administration Act are old. They consolidated the
regime established by the Administration Amendment
Act 1944 and there have been
few updates since 1969. Several issues arise.
The rules may not reflect contemporary public attitudes and
expectations
- 6.7 The
intestacy rules are designed to reflect what most people who die intestate would
do with their estate had they made a will.10
- 6.8 Overseas law
reform bodies have used various methods to identify what is the most common
approach to distributing assets on death,
including analysing wills proved,
conducting public surveys and consulting with members of the legal profession
and public. In addition
to our initial discussions with practitioners and
professional trustee corporations, we have used the to give us insight into
contemporary
attitudes about fair distributions where there is no will.
- 6.9 The
Succession Survey results suggest certain ways in which the current regime does
not align with contemporary attitudes and
expectations:
(a) Respondents generally supported sharing the estate
between partners and children on a fixed proportion basis that did not differ
depending on the estate size. 11
Currently, when a deceased is survived by a partner and children, the intestacy
regime provides a partner with a prescribed amount12 in addition to a share of the
remaining estate, which means the respective proportions are impacted by the
total value of the estate.
(b) Respondents generally supported a partner getting all of the estate when
the deceased is also survived by a parent and sibling.13 Currently, when the deceased
is survived by a partner and parents but no children, the surviving partner
takes the
- This
is the general aim of the present regime in Aotearoa New Zealand: see the speech
of Hon Rex Mason when introducing the Administration
Bill: (23 November 1944)
267 NZPD 288–289. See also the speech of Hon Ralph Hanan when
introducing the Administration Amendment Bill 1965: (21 September 1965) 344 NZPD
2875. It is also that most frequently opined in comparable jurisdictions as the
principal basis for intestacy rules: see for example
Law Commission of
England and Wales Family Law: Distribution on Intestacy (LC187, 1989) at
[24]; and New South Wales Law Reform Commission Uniform succession laws:
intestacy (R116, 2007) at [1.24]; Manitoba Law Reform Commission Report
on Intestate Succession (Report 61, 1985) at 7; and Alberta Law Reform
Institute Reform of the Intestate Succession Act (Report No 78, 1999)
at 59.
- In
the scenario, respondents were asked to divide a deceased woman’s estate
between her two adult children and her second husband.
Respondents were first
told that the estate was worth $1 million. They were then asked whether their
answer would change if the estate
was worth $150,000. Only seven per cent said
they would. About 50 per cent of respondents said that the two adult children
should
get more than half of the estate regardless of whether it was
worth
$1 million or $150,000: Ian Binnie and others Entitlements
to deceased people’s property in New Zealand: Public attitudes and values
– A general population survey (Te Whare Wānanga o
Ōtākou | University of Otago, research report to the Michael and
Suzanne Borrin Foundation, Dunedin,
April 2021) at [182] and figure 17.
- Under
the current law, a surviving partner is entitled to a prescribed amount where
the intestate is also survived by descendants
or parents. The prescribed amount
is set by regulation and is currently $155,000 plus interest:
Administration (Prescribed Amounts)
Regulations 2009, reg 5.
- Nearly
three-quarters (73 per cent) of respondents agreed that the partner should get
all of the estate: Ian Binnie and others Entitlements to deceased
people’s property in New Zealand: Public attitudes and values –
A general population survey (Te Whare Wānanga o Ōtākou |
University of Otago, research report to the Michael and Suzanne Borrin
Foundation, Dunedin,
April 2021) at [164] and figure 16.
deceased’s personal chattels and the prescribed amount. Of the remaining
estate, the deceased’s parents get one-third
of the
estate.
(c) Respondents without wills were generally more likely
than those with wills to divide an estate more favourably towards children
in
scenarios where the deceased is survived by a partner and children. 14 However, the age of the
respondents also influenced some responses.15
The rules have not been adjusted to accommodate the increase in
blended families
- 6.10 The
rules may need to be adjusted to account for changes in family arrangements,
particularly increasing rates of re-partnering
and the associated increase of
blended families.
- 6.11 Information
about re-partnering in Aotearoa New Zealand is limited. Since the 1980s,
remarriages have made up approximately one-third
of total marriages each year
(28 per cent in 2019). This proportion has increased since the 1970s (in 1971,
16 per cent of marriages
were remarriages). Statistics on remarriages do not
capture people who divorce and then enter a de facto relationship.16 Blended families also appear
to be quite common, with one study indicating that one in five children had
lived in a stepfamily before
age 17.17
- 6.12 It is
common for people who enter relationships in later life or who have children
from a previous relationship to choose to
structure their finances differently
than they might have in earlier relationships, particularly those
relationships where
they shared children. This can also be reflected in how
people choose to divide their property when they die. The Succession
Survey
suggested that there is some preference for partners taking a greater
proportion of the estate where they share children
compared with where the
children are from a former relationship.18
- Ian
Binnie and others Entitlements to deceased people’s property in New
Zealand: Public attitudes and values – A general population survey
(Te Whare Wānanga o Ōtākou | University of Otago, research
report to the Michael and Suzanne Borrin Foundation, Dunedin,
April 2021) at
[173] and [180].
- For
example, in one scenario younger and middle-aged respondents without wills
generally preferred the adult children to get more
than half the estate but this
was a minority viewpoint among respondents without wills aged 50 and older: Ian
Binnie and others Entitlements to deceased people’s property in New
Zealand: Public attitudes and values – A general population survey
(Te Whare Wānanga o Ōtākou | University of Otago, research
report to the Michael and Suzanne Borrin Foundation, Dunedin,
April 2021) at
[180].
16 Tatauranga Aotearoa
| Stats NZ “Marriages, civil unions, and divorces: Year ended December
2019” (5 May 2020)
<www.stats.govt.nz>. See also
Te Aka Matua o te Ture | Law Commission Relationships and Families in
Contemporary New Zealand | He Hononga Tangata, he Hononga Whānau i
Aotearoa o Nāianei (NZLC SP22, 2017) at 30.
- This
is just under one in three Māori children (29 per cent): Arunachalam
Dharmalingam and others Patterns of Family Formation and Change in New
Zealand (Te Manatū Whakahiato Ora | Ministry of Social Development,
2004) at 73.
- When
presented with a scenario involving a surviving husband and the couple’s
two adult children, 64 per cent of respondents
favoured the husband getting more
than a per capita share of the estate. This was around 42 per cent when the
children were from
a former relationship: Ian Binnie and others Entitlements
to deceased people’s property in New Zealand: Public attitudes and values
– A general population survey (Te Whare Wānanga o
Ōtākou | University of Otago, research report to the Michael and
Suzanne Borrin Foundation, Dunedin,
April 2021) at [169] and figure
17.
The rules pre-date subsequent developments in relationship
property law
- 6.13 Under
the Property (Relationships) Act 1976 (PRA), a surviving partner to a qualifying
relationship may elect to divide the couple’s
relationship property rather
than receive their entitlements in the deceased partner’s intestacy. The
intestacy regime in the
Administration Act pre-dates the PRA. A surviving
partner’s entitlements on intestacy are not quantified in terms of their
relationship property rights. It is preferable that any reform to the intestacy
regime provides for consistency between the two regimes
to the extent
possible.
- 6.14 One issue
is that the Administration Act does not specify how a relationship property
settlement affects the intestacy regime.
There is some uncertainty on what the
position should be when married or civil union partners have separated and
entered into a
settlement agreement but have not obtained a formal dissolution
or separation order. Cases have reached different conclusions
about whether
the surviving former spouse or civil union partner should remain eligible in
the intestacy.19
The Act is framed in outdated and inaccessible language
- 6.15 The
Act does not comply with modern legislative drafting principles. The provisions
that detail the statutory distribution rules
use uncommon terms and phrases such
as “issue” and “absolutely vested interest”. There are
several examples
of long, unbroken sentences throughout the Act that make it
difficult to comprehend.20
The prescribed amount for partners can produce unfair
outcomes
- 6.16 Under
the current law, a surviving partner is entitled to a prescribed amount where
the deceased is also survived by issue or
parents. The prescribed amount is set
by regulation and is currently $155,000 plus interest.21
- 6.17 The
prescribed amount (sometimes referred to as a statutory legacy) is a method that
aims to protect the partner against hardship.
Overseas law reform bodies have
suggested one of the main objectives of the prescribed amount is to enable a
surviving partner to
purchase the deceased’s interest in the family home,
so the partner does not have to move.22
- 6.18 There are
several issues arising from the use of a prescribed amount and the way it
currently operates:
- The
Courts have interpreted s 77C of the Administration Act differently. See Re
Trotter HC Christchurch, CIV-2009- 409-2584, 10 May 2010; W v P
[2012] NZFC 3293; and Warrender v Warrender [2013] NZHC 787, [2013]
NZFLR 565.
20 See for example
Administration Act 1969, s 78(1)(a).
21 Administration (Prescribed Amounts)
Regulations 2009, reg 5.
- Law
Commission of England and Wales Intestacy and Family Provision Claims on
Death: A Consultation Paper (Consultation Paper No 191, 2009) at [3.9] and
[3.14]; and Law Reform Commission of Saskatchewan Reform of The Intestate
Succession Act, 1996: Final Report (2017) at 9.
(a) It does not reflect the apparent public preference that an
estate be shared between partners and children on a fixed proportion
basis
regardless of the total estate size.23
(b) It can produce inequitable outcomes. In small estates, the prescribed
amount may mean that children receive little or none of
the estate, potentially
leading to Family Protection Act 1955 (FPA) claims for further provision. In
other cases, the prescribed
amount may not be set high enough to provide the
partner with a sufficient legacy. There may be times where the partner’s
total
share of the estate is less than their relationship property
entitlement.24
(c) It is inflexible and does not take into account different ownership
structures of the deceased’s assets (such as tenancy
in common compared
with joint ownership).
(d) The single fixed sum does not account for geographic variation in housing
prices.
(e) It is infrequently reviewed and is not responsive to changes in housing
prices over time.25
PROPOSALS FOR REFORM
- 6.19 Our
preliminary view is the intestacy regime in the Administration Act should be
repealed and new provisions enacted that conform
to modern drafting
standards.
- 6.20 We have not
reached a preliminary view on where the new provisions should sit. One option
is they are contained within the
new Act. An alternative option is they are
kept within the Administration Act. 26 The main advantage of
containing the intestacy provisions within the new Act is it would
consolidate rights to succeed from
an estate, whether testate or intestate, in
one statute. On the other hand, the Administration Act deals with matters
related to
intestacy, such as letters of administration and appointments
of administrators.
- 6.21 As under
the current law, we propose a beneficiary in an intestacy should retain rights
to make a relationship property, family
provision or contribution claim.
- 6.22 The
intestacy regime should be designed to replicate what most intestate people
would have done had they made a will. In addition
to this overarching objective,
there are other objectives that should underpin the regime:
(a) The
rules should be simple to understand and to implement.
(b) The regime should be consistent with the other rights and entitlements
family members might have under the new Act, for example
a surviving
partner’s entitlements to relationship property.
- Ian
Binnie and others Entitlements to deceased people’s property in New
Zealand: Public attitudes and values – A general population survey
(Te Whare Wānanga o Ōtākou | University of Otago, research
report to the Michael and Suzanne Borrin Foundation, Dunedin,
April 2021) at
[182] and figure 17.
- This
is because where an intestate is survived by a partner and descendants, the
partner will receive the personal chattels, $155,000
prescribed amount and one
third of the remaining estate.
- The
current amount was set in 2009. The average house price in New Zealand in
January 2021 was $806,151: Property Value “Residential
House Values”
<www.propertyvalue.co.nz>
(formerly QV).
26 See Chapter
1 for our proposals about a single statute.
- 6.23 The
proposals for reform we set out below assume that a partially intestate estate
should be distributed according to the same
rules as a wholly intestate
estate.
- 6.24 In Chapter
8 we consider tikanga Māori and the distribution of intestate
estates.
Defining “issue”
- 6.25 The
current law uses the term “issue” but does not define it. 27 We are considering whether
this should be replaced with the better understood term
“descendants”. Whichever term is used,
we propose that it is defined
in the new Act so that people understand it to mean all lineal descendants. 28 In the rest of this chapter,
we use “descendants”.
Other classes of parent–child relationships
- 6.26 We
propose that a deceased’s biological children and children the deceased
formally adopted in accordance with the Adoption
Act 1955 should remain
eligible to succeed in an intestacy.
- 6.27 Our
preliminary view is that stepchildren and other classes of children for whom the
deceased may have accepted parental responsibilities
should remain excluded from
the intestacy regime (we discuss whāngai below). Although we recognise that
the deceased may have
wished to provide for them, extending the definition of
child or descendant would overcomplicate the law, create practical uncertainties
and establish an unreasonable responsibility for administrators. 29 Administrators may be
required to undertake complicated factual analyses about the nature of the
child’s relationship with the
deceased. It may have the unintended result
of encouraging rather than dissuading claims against the estate. Where the
surviving
family are all in agreement that a parent- child relationship existed,
they may have no trouble accepting that the child should also
share in the
estate, but where there is contention about that relationship, conflict is
likely to arise.
- 6.28 At times,
this approach will produce seemingly unfair results, for example, where one of
the child’s biological parents
died when the child was very young and a
stepparent assumed the place of that biological parent. We acknowledge that, in
the Succession
Survey, 57 per cent of respondents stated that the
deceased’s estate should be split evenly between two adult children from
the deceased’s first marriage and two adult stepchildren.30 However, we are not convinced
that it is the role of the intestacy regime to respond to such situations.
Preferably, the deceased
would have made a will that suits
27 This is not uncommon.
The term “issue” is used frequently in intestacy regimes
internationally and is rarely defined.
- This
would accord with most Canadian jurisdictions: Intestate Succession Act RSNWT
1988 c I–10, s 1(1); The Intestate Succession
Act CCSM 1990 c 185, s 1(1);
Intestate Succession Act RSNL 1990 c I–21, s 2(b); Intestate Succession
Act RSNS 1989 c 236, s
2(b); Probate Act RSPEI 1988 c P-21, s 86(b); Wills and
Succession Act SA 2010 c W-12.2, s 1(1)(e); Wills, Estates and Succession
Act
SBC 2009 c 13, s 1; and The Intestate Succession Act SS 2019 c I-13.2, s 2.
- It
would be consistent with the intestacy regimes throughout Australia, the United
Kingdom and Canada for the definition of descendants
to refer only to natural
and legally adopted descendants.
- A
third believed that the children from the first marriage should receive a
majority share: Ian Binnie and others Entitlements to deceased people’s
property in New Zealand: Public attitudes and values – A general
population survey (Te Whare Wānanga o Ōtākou | University of
Otago, research report to the Michael and Suzanne Borrin Foundation, Dunedin,
April 2021) at [185] and figure 17.
their family circumstances. In the absence of a will, families can agree to
share the estate differently to the intestacy rules and
in certain circumstances
such a child may be eligible to make a claim for a family provision award.31
- 6.29 Similarly,
our preliminary view is that the intestacy rules should not be extended to
include guardians or other parental figures.
- 6.30 We are
considering whether whāngai should be excluded from the intestacy regime.
We have learned from initial hui with Māori
that it would not be
appropriate for tamariki whāngai to always be entitled to succeed from
their matua whāngai on intestacy
alongside any biological children or
children adopted according to the Adoption Act. This is because tikanga around
whāngai
arrangements differ among whānau and hapū. There may be
an expectation that a tamaiti whāngai will receive a share
of the matua
whāngai estate, or the biological parents’ estate, or both. If
whāngai were excluded from the intestacy
regime, their position would be
the same as other accepted children. That is, in the absence of a will they may
reach an agreement
with surviving whānau members or claim a family
provision or recognition award. One alternative option would be to allow for
provision for whāngai depending on the tikanga of the relevant whanau or
hapū. We discuss tikanga Māori and intestacy
in more detail in Chapter
8.
Children not born at the time of death
- 6.31 Our
preference is that children in utero at the time of the deceased’s death
who are later born should continue to be eligible
to succeed on intestacy. 32 However, we are considering
whether the regime should allow for other children born after the
deceased’s death. This might include
children born from gametes and
embryos stored for posthumous reproduction that have not been implanted in utero
at the time of death.
- 6.32 As noted in
Chapter 4, the Advisory Committee on Assisted Reproductive Technology (ACART)
has undertaken a recent review of guidelines
relating to posthumous
reproduction.33 In its
discussion document and during its deliberations, ACART considered that where
the deceased gave consent for their sperm or
eggs to be used to create
offspring for their partner, the wishes of the deceased should be enabled
through the revised guidelines.
- 6.33 We propose
two reform options for consideration if posthumous reproduction is enabled
through revised guidelines:
(a) Retain the current law, which has
the effect of excluding children from posthumous reproduction.
(b) Amend the law to include children from posthumous reproduction subject to
some limitations.
31 See Chapter 11 about
settlement agreements and Chapter 4 on family provision.
32 Administration Act 1969, s 2(1).
- Advisory
Committee on Assisted Reproductive Technology (ACART) Posthumous
Reproduction: A review of the current Guidelines for the Storage, Use,
and Disposal of Sperm from a Deceased Man to take into account gametes and
embryos (Manatū Hauora | Ministry of Health, 3 July 2018); and Advisory
Committee on Assisted Reproductive Technology (ACART) Proposed Guidelines for
the Posthumous Use of Gametes, Reproductive Tissue and Stored Embryos: Stage two
consultation document (Manatū Hauora | Ministry of Health, July
2020).
Option One: retain the current law excluding posthumous
reproduction
- 6.34 There
are several reasons not to amend the current regime to include children born
from posthumous reproduction:
(a) It may delay the distribution of
intestate estates.
(b) Posthumous conception is uncommon, and parents storing their genetic
material for future use are likely to be encouraged to make
a will that deals
with its use.34
(c) Recognising legal rights of a child not yet in existence may be
detrimental to the rights of other people who might inherit from
the
deceased.
- 6.35 Most
comparable jurisdictions do not provide intestate succession rights to children
born from posthumous reproduction.35 Several law reform bodies
that have considered the issue have recommended their exclusion.36
Option Two: amend the law to include posthumous reproduction
subject to some limitations
- 6.36 The
primary rationale for including children born from posthumous reproduction is
that it would be in the best interests of that
child and would avoid treating
children differently based on the way they came into the world.37 This option would be
consistent with our preference discussed in Chapter 4 that an unborn child in
utero prior to the expiry of the
limitation period should be eligible to claim
family provision under the new Act.
- 6.37 Several law
reform bodies have recommended that children born from posthumous reproduction
should be entitled to share in their
intestate parent’s estate. 38 The law reform bodies have
suggested restrictions to balance the rights of other entitled family members
and to facilitate timely
distribution of an intestate estate. These include
requiring that the child is born within a specified time limit and requiring
notice
to interested parties that posthumous reproduction is a possibility.
- 6.38 If there is
support for providing intestate succession rights to children born from
posthumous reproduction and ACART guidelines
are revised to permit posthumous
reproduction, we propose that, in order to succeed in an intestacy, the child
must be in utero
within 12 months from the grant of administration of the
estate unless this time period has been extended by the court. The 12-month
time period is preferred because
- The
impact of including children born from posthumous reproduction may also depend
on which reform proposal is preferred for the distribution
between partners and
children (discussed later in this chapter).
- Jurisdictions
that provide intestate succession rights to children born from posthumous
reproduction include British Columbia, Ontario
and South Australia: Wills,
Estates and Succession Act SBC 2009 c 13, s 8.1; Succession Law Reform
Act RSO 1990 c S.26, ss
1, 1.1(1) and 57(2); and Family Relationships Act 1975
(SA), s 10C(5).
- See
Law Reform Commission of Saskatchewan Reform of The Intestate Succession
Act, 1996: Final Report (2017) at 18; New South Wales Law Reform
Commission Uniform succession laws: intestacy (R116, 2007) at
[7.21]–[7.32]; and Alberta Law Reform Institute Assisted Reproduction
After Death: Parentage and Implications (Final Report 106, 2015) at
vii.
- See
Manitoba Law Reform Commission Posthumously Conceived Children: Intestate
Succession and Dependants Relief; The Intestate Succession Act: Sections
1(3), 6(1), 4(5), 4(6) and 5 (Report 118, 2008) at 16; Law Reform Commission
of Saskatchewan Reform of The Intestate Succession Act, 1996: Final
Report (2017) at 15.
- Manitoba
Law Reform Commission Posthumously Conceived Children: Intestate Succession
and Dependants Relief; The Intestate Succession Act: Sections 1(3), 6(1),
4(5), 4(6) and 5 (Report 118, 2008) at 31; and Ontario Law Reform Commission
Report on Human Artificial Reproduction and Related Matters (1985) at
278.
it aligns with our proposed time limit to make a claim (see Chapter 13) and
promotes timely distribution.
Defining “personal chattels”
- 6.39 We
propose that a surviving partner remains entitled to the deceased’s
personal chattels as we explain further below. However,
the current definition
of personal chattels is outdated.39
We propose that the definition of personal chattels should be modernised
with reference to the definition of “family chattels”
in the PRA as
amended in accordance with our recommendations in the PRA review.40
- 6.40 Our
preliminary view is that taonga should be expressly excluded from the definition
of personal chattels. Taonga is excluded
from the definition of family chattels
in the PRA. In the PRA review, the Commission recommended that the new
Relationship Property
Act should ensure that taonga cannot be classified as
relationship property in any circumstances and that a court cannot make orders
requiring a partner to relinquish taonga as compensation to the other partner.41 By expressly excluding taonga
from the definition of personal chattels in the intestacy regime, taonga will
not automatically pass
to a deceased’s surviving partner. This is
important for protecting taonga from being passed outside the whakapapa line. We
discuss in Chapter 7 whether taonga should be excluded generally from state
succession law.
- 6.41 We are also
considering whether heirlooms should be expressly excluded from the definition
of personal chattels. The nature
of an heirloom is that it is an item of
particular importance that is passed down from one generation to another in
accordance with
some special family custom.42 In some situations, the
deceased’s children would be devastated that an heirloom passes to the
surviving partner. However,
it may be onerous to require an administrator
to determine whether an item was an heirloom. In comparable jurisdictions, it
is
uncommon for heirlooms to be expressly excluded. 43 Excluding heirlooms from the
definition of personal chattels would mean that these do not automatically pass
to the surviving partner,
and an administrator will then be required
to
- For
example, the definition refers to “stable furniture and effects” and
“consumable stores”: see Administration
Act 1969, s 2(1) definition
of “personal chattels”.
- Property
(Relationships) Act 1976, s 2 definition of “family chattels”. In
the PRA review we recommended amending the
definition of family chattels to
those items “used wholly or principally for family purposes”: Te
Aka Matua o te
Ture | Law Commission Review of the Property
(Relationships) Act 1976 | Te Arotake i te Property (Relationships)
Act 1976 (NZLC R143, 2019) at R11 and [3.86]–[3.89].
- Te
Aka Matua o te Ture | Law Commission Review of the Property (Relationships)
Act 1976 | Te Arotake i te Property (Relationships) Act 1976 (NZLC
R143, 2019) at R82.
- Humphrey
v Humphrey FC Christchurch FAM-2003-009-3044, 25 May 2005 at [112]. See also
H v F FC Auckland FAM- 2005-004-1312, 27 January 2006 at [48]; and
Stuart v Stuart FC Christchurch FAM-2003-00-5175, 16 March 2005 at
[19].
- Scotland
is the only jurisdiction across the UK, Australia and Canada to exclude
heirlooms: see Succession (Scotland) Act 1964, ss
8(6)(b) and (c). Section
8(6)(c) defines heirloom to mean any article which has associations with the
intestate’s family of
such nature and extent that it ought to pass to some
member of that family other than the surviving spouse of the intestate. The
position of heirlooms was raised by the Law Commission of England and Wales and
Australia’s National Committee but neither
made recommendations to exclude
heirlooms from the definition of personal
chattels: Law Commission
of England and Wales Distribution on Intestacy (Working Paper No 108,
1988) at 19; and New South Wales Law Reform Commission Uniform succession
laws: intestacy (R116, 2007) at [4.17]–[4.19].
value and distribute the heirlooms between the surviving partner and other
family members.
- 6.42 In the PRA
review, the Commission recommended that items of special significance should be
expressly excluded from the definition
of family chattels.44 This would include items that
have special meaning to a partner and are irreplaceable in that a similar
substitute item or its monetary
value would be an insufficient replacement.45 We do not propose that this
exception is made to the definition of personal chattels in the intestacy rules.
One of the purposes of
distinguishing personal chattels from other property is
to reduce conflict over the ownership of particular items. Carving out items
of
special significance to the deceased might undermine this benefit and, unlike
heirlooms, an item of special significance to the
deceased may not be
significant to the deceased’s children or may be significant to the
deceased’s partner.
Qualifying relationship
- 6.43 A
qualifying partner should include a spouse, civil union partner and anyone in a
qualifying de facto relationship as set out
in the PRA (and our recommendations
in the PRA review). Generally, a de facto relationship should not qualify if it
is less than
three years. However, a surviving de facto partner from a
relationship of less than three years should be eligible if:46
(a) there is a child of the
relationship and the court considers it just that the surviving partner is
eligible; or
(b) the applicant has made substantial contributions to the relationship and
the court considers it just that the partner is eligible.
- 6.44 Where the
deceased is survived by more than one qualifying partner, we think these
partners should share evenly in the property
allocated for a surviving partner.
47 This would not represent a
change from the current law.48
- 6.45 Our
preliminary view is that separated surviving partners should remain eligible to
claim under the intestacy regime provided
no more than two years have elapsed
since they ceased living together as a couple. This is a shift from the
current law, which
provides that a former spouse or civil union partner would
only cease to be eligible if their marriage or
- Te
Aka Matua o te Ture | Law Commission Review of the Property (Relationships)
Act 1976 | Te Arotake i te Property (Relationships) Act 1976 (NZLC
R143, 2019) at R21.
- Te
Aka Matua o te Ture | Law Commission Review of the Property (Relationships)
Act 1976 | Te Arotake i te Property (Relationships) Act 1976 (NZLC
R143, 2019) at R22.
46 This
approach will be consistent with our proposals regarding eligibility for
relationship property entitlements (Chapter
3) and family provision awards (Chapter 4)
- Note
several Australian jurisdictions expressly provide that the surviving partners
can enter a written agreement or obtain a court
order within a set period to
distribute the property differently: Succession Act 2006 (NSW), s 125;
Succession Act 1981 (Qld), s 36; Intestacy Act 2010 (Tas), s 26; Administration
and Probate Act 1958 (Vic), ss 70Z–70ZE. The distribution of personal
chattels can cause difficulties where there are contemporaneous partners and
some jurisdictions make
special provision for these: see for example
Administration and Probate Act 1969 (NT), s 67(3).
- Administration
Act 1969, s 77C. See Chapter 3 for our proposed rules to share relationship
property contested by surviving partners
from contemporaneous
relationships.
civil union has been formally dissolved or the court has granted a
separation order.49 While
we recognise this approach may require an administrator to make difficult
factual determinations about the date of separation,
we favour it because it
enables consistency between the treatment of married, civil union and de facto
partners. 50 It would also
promote consistency with proposals regarding relationship property claims in
Chapter 3, family provision claims in
Chapter 4, and revocation provisions under
the Wills Act in Chapter 18.
- 6.46 In Chapter
11, we propose that partners should be able to contract out of and settle claims
against each other’s estates
under the new Act provided the agreements
conform to the Act’s procedural requirements. If the partners have
separated and
entered an agreement that purports to settle all claims and
entitlements to the other’s property, even if the marriage or civil
union
has not been formally dissolved, we propose that the terms of the agreement
should mean the surviving partner is ineligible
to receive in the deceased
partner’s intestacy.
- 6.47 There are,
however, difficulties with this approach. Couples may have informally settled
the division of their relationship property.
Where this has happened and one
partner dies within two years of separation, the other partner would remain
eligible under the intestacy
regime. People may feel that this partner is
getting a windfall at the expense of other beneficiaries and that this would be
contrary
to the deceased’s intentions. If fewer claimants are eligible to
make family provision claims than exist under the FPA (as
we propose in Chapter
4), this would generally not be resolved through that mechanism.
- 6.48 One option
to manage this problem would be to incorporate a mechanism whereby the affected
beneficiaries may bring proceedings
to challenge the partner’s eligibility
on the basis that the couple’s informal settlement of their relationship
property
affairs should mean that the surviving partner is excluded. This may
resolve situations perceived to be unfair but it also risks
undermining our
preference for settlement agreements that meet the requirements of the PRA and
increasing delays in estate administration.
Prescribed amount for partners
- 6.49 A
possible reform would be to increase the prescribed amount. Where overseas law
reform bodies have recommended an increase,
the general view has been that any
increase should reflect rising house prices and inflation. 51 We do not see this as a
satisfactory solution. We have heard concerns that children sometimes miss out
entirely because a family home
passes by survivorship to the surviving partner,
leaving the estate below the value of the current prescribed amount. It is also
difficult to set a prescribed amount that reflects house prices given the range
in house values across different areas in Aotearoa
New Zealand.52
49 Administration Act
1969, s 77A.
- The
inconsistency in the current law may constitute discrimination under human
rights law: New Zealand Bill of Rights Act 1990, s
19(1); and Human Rights Act
1993, s 21.
- See
for example New South Wales Law Reform Commission Uniform succession laws:
intestacy (R116, 2007) at R6; and Law Reform Commission of Saskatchewan
Reform of The Intestate Succession Act, 1996: Final Report (2017)
at 9.
- See
a similar discussion on a partner’s protected interest in the family home
under the Property (Relationships) Act 1976 in
Te Aka Matua o te Ture | Law
Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at
[18.14].
- 6.50 Consequently,
our preliminary view is that the prescribed amount for partners should be
repealed. All options presented in this
chapter assume a surviving partner would
not receive a prescribed amount.
Partner, no descendants but one or more parent
- 6.51 Our
preliminary view is that, where the deceased is survived by a partner and no
descendants, the partner should take the entire
estate rather than the
deceased’s parents receiving a share. We have heard that the current law
of providing one-third of the
residuary estate to the deceased’s parents
runs counter to public expectations. This is supported by the results of the
Succession
Survey, which found that 73 per cent of respondents agreed or
strongly agreed that a surviving partner should get all of an intestate
estate
when the deceased is also survived by their mother and brother.53
Partner and descendants
- 6.52 Where
the deceased is survived by a partner and descendants, the surviving partner
should continue to be entitled to the
deceased’s personal chattels based
on the amended definition set out above. This approach will discourage conflict
over ownership
of the items and help to avoid delay for administrators. We
also anticipate that the deceased’s partner will have depended
on several
of the items for day-to-day living. A surviving partner’s entitlement to
the personal chattels should cause less
disruption for the surviving
partner than if the chattels were to be sold or distributed to other
beneficiaries.
- 6.53 We present
three reform options for distribution of the rest of the estate where there is a
surviving partner and descendants.
Option One: the partner takes the whole or a greater share
of the estate where all the deceased’s descendants are of that
relationship
- 6.54 Under
this option, we propose that a surviving partner would get the entire estate
where the deceased’s children (or more-remote
descendants where the child
died before the intestate parent) are of that relationship. We propose that,
where one or more of the
deceased’s children are of another relationship,
the deceased’s partner takes the personal chattels and 50 per cent of
the
remaining estate, and the deceased’s children share evenly in the
remaining 50 per cent.
- 6.55 Option One
may be justified on several grounds:
(a) It would best reflect the
practices of most will-makers. International studies have indicated a general
preference for prioritising
a partner over children, particularly where the
children are also of that relationship. 54 The Succession Survey
- Ian
Binnie and others Entitlements to deceased people’s property in New
Zealand: Public attitudes and values – A general population survey
(Te Whare Wānanga o Ōtākou | University of Otago, Research
report to the Michael and Suzanne Borrin Foundation, Dunedin,
April 2021) at
[164] and figure 16.
- A
survey of 548 wills proved in the NSW Probate Registry in 2004 revealed that
around 75 per cent of will-makers with a partner and
children chose to give the
entire residue of their estate to their partner: New South Wales Law Reform
Commission I give, devise and bequeath: an empirical study of
testators’ choice of beneficiaries (Research Report 13, 2006) at
[3.9]. A survey of 800 wills filed with the court in Alberta in 1992 identified
similar results. Of
260 wills involving a surviving spouse and children, 164 (63
per cent) allocated the entire estate to the spouse: see Alberta Law
Reform
Institute Reform of the Intestate Succession Act (Report No 78, 1999) at
190. Older studies conducted in England and
respondents also indicated a preference for prioritising a partner with shared
children compared with children of a former relationship
but the majority
still favoured splitting an estate evenly between children and partner (either
in equal shares or with half
the estate being allocated to the partner).55
(b) A surviving parent
will act as a conduit for their children. Children may share the benefit of the
surviving parent inheriting
in two possible ways. If the children are young
their interests are normally best served by better equipping the surviving
parent
and if they are adults, they are likely to inherit any unconsumed portion
of property from their surviving parent.56 If the surviving partner is
not the parent of the deceased’s children, there is less likelihood the
partner would act as a conduit
for the deceased’s children.
(c) It eliminates the need for trusts for children of that relationship who
are under 18. At times, trusts can be a cumbersome way
of providing for minor
children.57 Difficulties may
arise for parents seeking access to funds from trustees for the child’s
benefit.58
(d) This approach is preferred in several jurisdictions in Australia, Canada
and the United States.59
the United States are also cited in that report: at 52. A public
attitudes survey conducted in the United Kingdom in 2010 found that
51 per cent
of respondents would allocate the whole estate to the wife where a married man
was survived by his wife and two children
over 18 and a further 29 per cent
would prioritise the wife. Similar results were seen when respondents were asked
about young children:
Alun Humphrey and others Inheritance and the family:
attitudes to will- making and intestacy (National Centre for Social
Research, August 2010) at 39–40. Note that when respondents were asked
about a cohabitant instead
of a wife, only a third (32 per cent) said that the
whole estate should be allocated to the partner: at 43.
- When
asked what should happen to the estate when an intestate is survived by their
partner and the couple’s two adult children,
64 per cent said the partner
should get more than a per capita share. When presented with a scenario where
the children were from
an earlier relationship, around 42 per cent thought the
partner should get more thana per capita share: Ian Binnie and others
Entitlements to deceased people’s property in New Zealand: Public
attitudes and values – A general population survey (Te Whare
Wānanga o Ōtākou | University of Otago, Research report to the
Michael and Suzanne Borrin Foundation, Dunedin,
April 2021) at [169] and figure
17.
- See
Lawrence W Waggoner “The Multiple-Marriage Society and Spousal Rights
under the Revised Uniform Probate Code” (1991) 76 Iowa L Rev 223 at
232–233; and the discussion of conduit theory in Law Commission of England
and Wales Intestacy and Family Provision Claims on Death: A Consultation
Paper (Consultation Paper No 191, 2009) at [3.100]–[3.111].
- See
the discussion in Law Commission of England and Wales Family Law:
Distribution on Intestacy (LC187, 1989) at [36].
- This
concern was raised in consultation in NSW: see New South Wales Law Reform
Commission Uniform succession laws: intestacy (R116, 2007) at
[3.45].
- This
includes New South Wales, Victoria, Tasmania, Manitoba, Alberta and British
Columbia: see Succession Act 2006 (NSW), ss 112 and 113; Administration and
Probate Act 1958 (Vic), ss 70K–70L; Intestacy Act 2010 (Tas), ss 13 and
14; The Intestate Succession Act CCSM 1990 c 185, ss 2(2) and 2(3); Wills and
Succession Act SA 2010 c W-12.2, s 61; Wills, Estates and Succession Act SBC
2009 c 13, s 21. It was recommended by the Law Reform Commission of
Saskatchewan: see Law Reform Commission of Saskatchewan Reform of The
Intestate Succession Act, 1996: Final Report (2017) at 10. It also forms
part of the Uniform Probate Code that has been enacted by many American states:
see Uniform Probate Code
§ 2-102.
- 6.56 However,
there are potential problems with Option One.60
(a) A parent will not always
be a reliable conduit. They will not always choose to pass wealth on to their
children, or a subsequent
re-partnering may have the effect of diverting some or
all the wealth from the children. Under our proposals about family provision
(see Chapter 4), older children will have limited recourse if they do not
receive a share of the estate when their parent dies intestate.
(b) Conduit theory may not be relevant in many estates. For example, in
low-value estates where the children are adults, it is
unlikely that there will
be surplus inheritance to be passed on when the surviving parent dies.
(c) It has been argued that it is wrong in principle for the entitlement of
one partner to differ from that of another because of
the presence of children
from other relationships.61
Option Two: the partner’s share decreases depending on
the number of descendants
- 6.57 Under
this option, a partner would take the personal chattels and two-thirds of the
remaining estate where there is one child
(or their descendants where the child
died before the intestate parent) or one-half where there are two or more
children (or their
descendants). It would be irrelevant whether or not the
deceased’s children are also children of the partner.
- 6.58 Option Two
may be justified on the grounds of equity. That is, people view it as fairer for
the surviving partner to take a larger
share when there are fewer children. The
Succession Survey did not directly address this matter, however, a sizeable
minority indicated
favour for splitting estates in equal shares between partners
and children.62 However, we
do not propose a per capita split. In some circumstances (particularly where the
deceased had many children), this will
mean a surviving partner’s
entitlement would diminish below their relationship property entitlement,
thereby undermining our
objective of ensuring consistency with the rights and
entitlements under the new Act.
- 6.59 Another
benefit is that as all children will receive a share of the estate under Option
Two, there is not a risk that a child
might miss out because their parent was
an unreliable conduit.
- 6.60 Where this
method has been applied internationally, the common approach is for a
partner to take half of the residuary estate
(generally in addition to a
prescribed amount) where there is one child and one-third where there is more
than one child.63
- For
further discussion of the criticisms of conduit theory, see Law Commission of
England and Wales Intestacy and Family Provision Claims on Death: A
Consultation Paper (Consultation Paper No 191, 2009) at
[3.106]–[3.110]; and the final report Law Commission of England and Wales
Intestacy and Family Provision Claims on Death (LC331, 2011) at
[2.68].
61 Law Commission of
England and Wales Intestacy and Family Provision Claims on Death (LC331,
2011) at [2.68].
- Ian
Binnie and others Entitlements to deceased people’s property in New
Zealand: Public attitudes and values – A general population survey
(Te Whare Wānanga o Ōtākou | University of Otago, research
report to the Michael and Suzanne Borrin Foundation, Dunedin,
April 2021) at
figure 17.
- See
Administration of Estates Act (Northern Ireland) 1955, s 7; Administration and
Probate Act 1929 (ACT), s 49 and sch 6; Intestate Succession Act RSNS 1989 c
236, s 4(5); Devolution of Estates Act RSNB 1973 c D-9, s 22; Intestate
Succession
Act RSNWT 1988 c I–10, s 2(6); Intestate Succession Act RSNL
1990 c I–21, s 4.
- 6.61 However,
some of the benefits of Option One may be lost under Option Two, such as
reducing the need for trusts and the likelihood
of split inheritance of the
family home. Option Two also introduces different treatment of partners based on
the number of children
the deceased had, which may be an unwelcome
distinction.
Option Three: the partner’s share is a set percentage
and does not change depending on the number of descendants or the relationship
of those descendants to the surviving partner
- 6.62 Under
this option, we propose that a surviving partner would take the personal
chattels and half of the remaining estate while
the other half would be divided
evenly between the deceased’s children (or their descendants where the
child died before the
intestate parent).
- 6.63 Option
Three has the benefit of being the simplest of the three proposals.
However, it may not reduce the number of trusts
needed for minor children nor
would it reflect what we understand to be the common practice of will-makers to
prioritise their
surviving partner where the children are of that
relationship.
Descendants but no partner
- 6.64 Where
the deceased is survived by descendants but no partner, we propose no change to
the current law. The deceased’s
children should share the estate evenly.
More remote descendants should share the estate when a child has predeceased the
deceased.
How the shares of more-remote descendants are to be determined is
discussed below, where we consider options for distribution on
a per stirpes (by
family) approach or a per capita (by head) approach.
No partner or descendants but siblings and parents
- 6.65 Where
the deceased is survived only by their siblings and parents, our
preliminary view is that the deceased’s
parents should have priority
above siblings.64 This is
the position under current law as well as in most comparable jurisdictions. 65 It is likely that the
deceased’s siblings will inherit from their parents when the parents
die.
- 6.66 We are not
aware of any research into the distribution preferences of New Zealand will-
makers when survived by parents and siblings
but a public attitudes survey
conducted in England and Wales revealed that people favoured equal sharing or
giving priority to parents.66
64 Under the current law,
siblings include half brothers and sisters. We do not propose any change to
this.
- This
includes England and Wales, Northern Ireland, all Australian states (although in
Western Australia siblings get a share of the
estate if it is over a certain
value: see Administration Act 1903 (WA), s 14) and all common law Canadian
provinces (in Québec, the estate is partitioned equally between the
parents and siblings: see
Civil Code of Québec CCQ-1991 § 674). In
Scotland, a surviving parent or parents have the right to one half of the estate
and any surviving siblings have the right to the other half: Succession
(Scotland) Act 1964, s 2(1)(b).
- Alun
Humphrey and others Inheritance and the family: attitudes to will-making and
intestacy (National Centre for Social Research, August 2010) at 63; and
Gareth Morrell, Matt Barnard and Robin Legard The Law of Intestate
Succession: Exploring Attitudes Among Non-Traditional Families (Final
Report, National Centre for Social Research, 2009) at 17–18. These
preferences were also reflected in consultation responses
to the New South Wales
Law Reform Commission: see New South Wales Law Reform Commission Uniform
succession laws: intestacy (R116, 2007) at [9.10].
- 6.67 In many
cases, sharing the estate equally between siblings and parents would require
dividing the estate between more people.
In some estates, each beneficiary could
receive very little. It may also be more complicated for administrators,
particularly when
property needs to be sold so that its value can be shared. Our
preliminary view is that equal sharing should only be considered
further if
submissions reveal overwhelming public support for it.
No partner, descendants or parents but siblings and nieces and
nephews
- 6.68 Where
the deceased is survived by siblings or nieces and nephews but no partner,
descendants or parents, our preliminary preference
is to retain priority for
siblings over nieces and nephews. Administrators would benefit from the ease of
transferring the estate
to siblings given it is likely to be a smaller class of
recipients than nieces and nephews. It also allows for a sibling’s
share
to be distributed to their children if the sibling predeceased the deceased,
which we discuss below when considering options
for distribution as per stirpes
(by family).
No partner, descendants, parents or siblings (or their
descendants) but grandparents, aunts and uncles
- 6.69 Where
the deceased is survived by grandparents or aunts and uncles, but no partner,
descendants, parents or siblings (or their
descendants), we suggest grandparents
should continue to take priority over aunts and uncles. This is for the same
reasons that we
prefer prioritising siblings over nieces and nephews. It is
likely to be a smaller class of recipients and it allows for distribution
to
aunts and uncles if the grandparents predeceased the deceased.
- 6.70 However, we
are considering two alternative options about the method of distribution, either
retaining the current law or a generational
distribution.
Option One: retain the existing division between the
parental lines
- 6.71 Under
the current law, the estate is split equally between the maternal and paternal
grandparents and aunts and uncles.67 Priority is given first to
grandparents and then to aunts and uncles. This means that a per stirpes
distribution will apply. If there
are no surviving aunts or uncles (or
descendants) on one kinship line, the estate will pass to the other.
- 6.72 This
approach is sometimes justified on the grounds that it avoids the entire estate
going to next of kin on one side of the
family when there are next of kin on
both sides.68
- Note
that the maternal/paternal terminology does not recognise that legal parenthood
does not require motherhood or fatherhood. It
does not, for example, recognise
the at least 1,476 same sex couples living with children recorded in the 2013
census: data included
in Table 20: Family type with type of couple, available at
Tatauranga Aotearoa | Stats NZ “2013 Census QuickStats about families
and
households” (4 November 2014) <www.stats.govt.nz>. See also Te Aka
Matua o te Ture | Law Commission Relationships and Families in Contemporary
New Zealand | He Hononga Tangata, he Hononga Whānau i Aotearoa o
Nāianei (NZLC SP22, 2017) at 35. Our preference is to adopt a
gender-neutral option. This would also have the benefit of future-proofing
the
legislation for the potential to have more than two legal parents: see Te Aka
Matua o te Ture | Law Commission New Issues in Legal Parenthood (NZLC
R88, 2005) at [6.67].
- Manitoba
Law Reform Commission Report on Intestate Succession (Report 61, 1985) at
32. See also Alberta Law Reform Institute Reform of the Intestate Succession
Act (Report No 78, 1999) at 154–156.
- 6.73 However, it
may also produce results that do not accord with public expectations. For
example, in a situation where a deceased
is survived by one maternal cousin and
eight paternal cousins, the maternal cousin would take one half of the estate
and the paternal
cousins would share the other half meaning they would each take
one sixteenth of the total estate.69
Option Two: provide that aunts and uncles are entitled to
the estate only when there is no partner, descendant, parent, sibling (or
their
descendant) or grandparent
- 6.74 Under
this option, aunts and uncles would receive a share of the estate only where
there were no living grandparents. Each generation
of relatives would share
evenly irrespective of the parental lines. That is, if there were four aunts,
they would each get one-quarter
of the estate and it would not matter that one
was a maternal aunt and three were paternal.
- 6.75 Option Two
may be considered simpler to understand and apply, and its equal treatment of
relatives of the same generation might
be more likely to reflect how most
intestate people would distribute their estate in that situation.
- 6.76 However,
unfairness may arise where the entire estate may devolve to a single branch of
the family because there is one surviving
relative of the ascendant generation.
For example, a maternal grandmother could take everything when there are living
paternal aunts
and uncles.
- 6.77 Option Two
may improve efficient estate administration but may also slow it down. For
example, if there is a single surviving
grandparent, an administrator does not
need to identify each aunt or uncle, but if the paternal aunts and uncles
were easily
identifiable and the maternal aunts and uncles were not, this
could delay the paternal aunts and uncles getting their share
(a problem
that would not arise under Option One).
No living grandparent, aunt, uncle, cousin or closer relative
(bona vacantia estates)
- 6.78 When
the deceased is not survived by a relative closer than a descendant of their
grandparent, the estate would be considered
ownerless and be taken by the Crown
as bona vacantia.
- 6.79 We propose
that the Crown retains its discretion to distribute any or all of a bona
vacantia estate. Discretionary distribution
provisions are a fair solution that
reflects the practical difficulties involved in locating and making decisions in
respect of other
relatives.
- 6.80 However, we
suggest that the current provision is amended to clarify that priority would be
given to dependants of the deceased
(whether kindred or not) followed by any
organisation or person for whom the deceased might reasonably be expected to
have made provision.
Distribution could be made to trustees for these parties if
necessary.
- 6.81 We are also
considering whether the list should be extended to include any other
organisation or person – something done
in several Australian
jurisdictions. 70
Our
- This
was raised by the Manitoba Law Reform Commission when it reviewed its position
in 2008: see Manitoba Law Reform Commission Posthumously Conceived Children:
Intestate Succession and Dependants Relief; The Intestate Succession Act:
Sections 1(3), 6(1), 4(5), 4(6) and 5 (Report 118) at 28.
- See
for example s 38 of the Intestacy Act 2010 (Tas); and s 137 of the Succession
Act 2006 (NSW). Both provisions were enacted following recommendation by
Australia’s National Committee and are modelled on s 20 of the
Property
preliminary view is that the public would see benefit in having a broad list
that allows charities, community groups, whānau,
hapū or iwi groups or
other organisations to utilise funds that would otherwise vest in the Crown.
Presently, extending the
list would be of little value because it is rare for
estates to vest in the Crown as bona vacantia.71 However, this is not the
case in all jurisdictions72
nor will it necessarily be the case in Aotearoa New Zealand in the future.
For example, it is possible that lower birth rate trends
could lead to more bona
vacantia estates.
Statutory trusts for minors
- 6.82 In
our preliminary view, the statutory trust regime for minors should continue.73
- 6.83 There will
be circumstances in which it is disadvantageous for the share of the estate to
be held on trust, such as where the
minor’s share is of low value and the
trust incurs professional management fees. A child’s interests are
generally best
served by the person responsible for their daily care having
sufficient cash assets or income. In such circumstances, trustees should
have
the discretion to distribute the capital. The ability to make such advancements
is governed by sections 62—64 of the Trusts
Act 2019.74
- 6.84 Under the
current law, if a beneficiary dies before turning 18, their share of an estate
will be distributed to the deceased’s
next of kin as if the minor had
predeceased the deceased.75
This is a compelling argument for delaying absolute vesting in minors as
the alternative might mean that a further grant of administration
is required if
the minor inherited more than $15,000. Our preliminary view is that the current
law should be retained.
- 6.85 However,
several other jurisdictions provide for the absolute vesting of a
minor’s share at any age.76
One of the justifications for absolute vesting at any age is that it
allows a minor’s share to pass to the minor’s children
if the minor
dies before the age of 18.77
Law Act 1974 (Qld): see New South Wales Law Reform Commission
Uniform succession laws: intestacy (R116, 2007) at R39 and
[10.38]–[10.40].
- Only
one estate, valued at approximately $15,000, vested in the Crown between January
2017 and August 2020: email from Te Tai Ōhanga
| The Treasury to Te Aka
Matua o te Ture | Law Commission regarding bona vacantia estates (14 August
2020). No application had been
made regarding that estate.
- For
example, in NSW in the period 2001–2005 the Public Trustee paid
A$24,289,946.86 into Treasury from 92 estates (averaging
A$264,000 each). During
that period, the limit was set at aunts and uncles rather than first cousins or
more remote relatives: see
New South Wales Law Reform Commission Uniform
succession laws: intestacy (R116, 2007) at
[10.4].
73 Note, we recommend
in Chapter 18 that all new provisions should conform to modern drafting
standards.
- Sections
62–64 replaced ss 40–41 of the Trustee Act 1956, which were overly
complex and restrictive: see Te Aka Matua
o te Ture | Law Commission Review
of the Law of Trusts: A Trusts Act for New Zealand (NZLC R130, 2013) at
[6.11]–[6.15].
- This
change came into force in 30 January 2021: see Trusts Act 2019, sch 4 pt 1.
Previously those under 20 years or otherwise married
or in a civil union could
take an absolute interest: Trustee Act 1956, s 40.
- For
example, NSW, Tasmania, Western Australia, South Australia, Queensland and
Victoria: see Succession Act 2006 (NSW), s 138. Intestacy Act 2010 (Tas), s 39;
Administration Act 1903 (WA), s 17A; South Australian Law Reform Institute
South Australian Rules of Intestacy (Report 7, 2017) at [4.7.1]; and New
South Wales Law Reform Commission Uniform succession laws: intestacy
(R116, 2007) at [12.9].
- South
Australian Law Reform Institute Cutting the cake: South Australian rules of
intestacy (Issues Paper 7, 2015) at [298].
Property outside the estate
- 6.86 Our
preliminary view is that the intestacy regime should continue to take no account
of property that does not fall into the
estate.
- 6.87 Any system
that seeks to take account of gifts made before the deceased’s death
or assets that pass by survivorship
would be complicated. International
approaches vary. Some jurisdictions require administrators to take account of
lifetime gifts
made within a certain time period (normally five years) unless a
contrary intention can be proved. 78 Other jurisdictions require
administrators to take lifetime gifts into account only where there is
evidence that the deceased intended
the gift to be an advancement on the
recipient’s share of the estate.79 Such provisions are
generally aimed at achieving fairness or equality. However, they may not
reflect the deceased’s intention
because, for example, the deceased may
have intended jointly owned property to pass by survivorship on their death. It
may be a considerable
task for an administrator to scrutinise transactions the
deceased made in the five years before death. Disputes may also occur
about the value of the advancement or whether any oral or written statement
made by the deceased is sufficient proof of the deceased’s
intention.
- 6.88 Many
jurisdictions have done away with these types of provisions, and this has
commonly been the recommendation of law reform
bodies, including the Australian
National Committee for Universal Succession Laws, the South Australian Law
Reform Institute, the
Law Commission of England and Wales, and the Law Reform
Commission of British Columbia.80
- 6.89 The
intestacy regime’s function is to distribute property that the deceased
did not dispose of through a will. It seems contrary to this function to
unwind dispositions or survivorship arrangements made before death.
- 6.90 Mechanisms
such as family provision claims and anti-avoidance mechanisms protect
beneficiaries to whom the deceased owed a duty.
81 Surviving family members
could continue to agree to a different distribution if they consider the
statutory distribution unjust (we
discuss agreements in Chapter
11).
- See
for example Australian Capital Territory, Northern Territory and South
Australia: Administration and Probate Act 1929 (ACT), s 49BA; Administration and
Probate Act 1969 (NT), s 68(3); Administration and Probate Act 1919 (SA), s
72K.
- This
is common in Canadian provinces: see The Intestate Succession Act CCSM 1990 c
185, s 8; Wills, Estates and Succession Act SBC 2009 c 13, s 53; Wills and
Succession Act SA 2010 c W-12.2, ss 109 and 110; Intestate Succession Act RSNWT
1988 c I–10, s 11; Estates Administration Act RSO 2014 c E.22, s 25;
Devolution of Estates Act RSNB 1973 c D-9, s 73; Intestate Succession Act RSNS
1989 c 236, s 13; Estate Administration Act RSY 2002 c 77; and Intestate
Succession Act RSNWT (Nu) 1988, c I–10, s 11.
- New
South Wales Law Reform Commission Uniform succession laws: intestacy
(R116, 2007) at R43; South Australian Law Reform Institute South
Australian Rules of Intestacy (Report 7, 2017) at R43–R44; Law
Commission of England and Wales Family Law: Distribution on Intestacy
(LC187, 1989) at [62]; Law Reform Commission of British Columbia Report
on Statutory Succession Rights (LRC 70, 1983) at
38–39.
81 See Chapters 4
and 9.
Distributing to descendants when their parent predeceased the
deceased
- 6.91 We
are considering two options for distributing an intestate estate where the
family member of the deceased who would otherwise
receive a share has died but
has descendants. The options would apply to lineal descendants of the deceased
(the deceased’s
children, grand or great-grandchildren) and to lineal
descendants of the deceased’s siblings (the deceased’s nieces and
nephews, grand or great-grand nieces and nephews) or the deceased’s aunts
and uncles’ lineal descendants (cousins of
all degrees).
Option One: retaining the per stirpes (by family)
distribution
- 6.92 The
per stirpes (by family) distribution is the current mechanism. It works by
dividing a parent’s share in equal portions
among their living
children.
- 6.93 The per
stirpes method is usually justified on the grounds that it will replicate the
distribution that would generally occur
if the person entitled had died after
the deceased (that the parent would have passed on their inheritance to their
children).82 It may also
promote efficient administration, particularly as administrators are able to
make distributions to known relatives while
they reserve the shares of
unidentified relatives.83
Option Two: introducing a limited per capita (by head)
distribution at each generation
- 6.94 Introducing
a limited per capita (by head) distribution would mean that when some but not
all of one generation has predeceased
the deceased, they take on a per stirpes
basis but when an entire generation has predeceased the deceased, the
descendants take on
a per capita basis.84
- 6.95 For
example, the deceased had two children, neither of whom survived her. Six
grandchildren survive the deceased: son A’s
four children and son
B’s two children. The six grandchildren would each get one sixth of the
whole estate. However, if only
son B had died before the deceased, son A’s
four children would each get one quarter of their father’s half of the
estate.
- 6.96 It may be
seen as fairer to treat all of one generation equally (for example,
grandchildren) when none of their parents (for
example, the deceased’s
children) are alive and may better reflect the presumed wishes of most people
who die intestate.85 However,
the method may involve a degree of complexity and delay where there is
difficulty tracing members of a generation.
- New
South Wales Law Reform Commission Uniform succession laws: intestacy
(R116, 2007) at [8.17]; and Alberta Law Reform Institute Reform of the
Intestate Succession Act (Report No 78, 1999) at 139–140.
- New
South Wales Law Reform Commission Uniform succession laws: intestacy
(R116, 2007) at [8.17]; and South Australian Law Reform Institute South
Australian Rules of Intestacy (Report 7, 2017) at [4.6.3].
- This
approach is taken in Scotland: see Succession (Scotland) Act 1964, s 6. The
Scottish Law Commission reviewed the process in
2009 and recommended retaining
it: see Scottish Law Commission Report on Succession (Scot Law Com No
215, 2009) at [2.43]. It is also the method used in South Australia: see
Administration and Probate Act 1919 (SA), ss 72I and 72J. In 2017 the South
Australian Law Reform Institute recommended it be continued for grandchildren
but that in other cases distribution
should be per stirpes: see South Australian
Law Reform Institute South Australian Rules of Intestacy (Report 7, 2017)
at R25.
- Australia’s
National Committee believed a majority of Australians would prefer this method:
see New South Wales Law Reform Commission
Uniform succession laws: intestacy
(R116, 2007) at [8.32].
SUMMARY OF PROPOSALS FOR REFORM
- The
intestacy regime should be designed to replicate what most intestate people
would have done had they made a will. The rules should be simple to
understand and apply, and be consistent with relationship property
entitlements
and rights to claim family provision under the new Act.
- Two options
are presented for where the new provisions should sit:
- The
definition of “issue” (or “descendants” if the term is
preferred) should include only the deceased’s biological children or
adopted in accordance with the Adoption Act. However, two options are presented
in relation
to whāngai:
- Option
One — exclude whāngai from the descendants entitled to inherit in
intestacy.
- Option
Two — allow provision for whāngai depending on the tikanga of the
relevant whānau or hapū.
- Two options
are presented in relation to children born from posthumous
reproduction:
- Option
One — retain the current law excluding children from posthumous
reproduction.
- Option
Two — amend the law to include children from posthumous reproduction
subject to notice requirements and a time limit.
- Changes are
also proposed to clarify and modernise the definitions of personal
chattels and qualifying relationships.
- The
prescribed amount for partners should be repealed.
- Where the
deceased is survived by a partner and no descendants, the partner should
take entirely. A parent should no longer receive any of the estate.
- Three
options are presented for where the deceased is survived by a partner and
descendants:
- Option
One — a partner takes the entire estate where the descendants are of that
relationship. Where there is at least one descendant
of another relationship,
the partner takes the personal chattels and half of the remaining estate with
the rest shared equally among
the descendants.
- Option
Two — a partner takes the personal chattels, and two-thirds of the
remaining estate where there is one child (or descendants
of that child) or one
half where there are two or more children (or their descendants).
- Option
Three — a partner takes the personal chattels and half of the remaining
estate irrespective of the number of children.
- Where the
deceased is survived by no partner but descendants, the current law that
the children (or their descendants) share the estate should remain.
- Where the
deceased is survived by no partner or descendants but by parents and
siblings, the priority in favour of parents should
remain.
|
|
Q21
|
Do you agree with the issues we have identified?
|
|
Q22
|
Are there other issues with the law we have not identified?
|
|
Q23
|
What are your views on the proposals for reform?
|
|
Q24
|
Do you have
|
any other suggestions for reform?
|
|
- Two options
are presented for the distribution to grandparents, aunts and uncles:
- Option
One — retain the current division between parental lines.
- Option
Two — provide that aunts and uncles only inherit when there is no living
grandparent.
- The Crown
should have a wider discretion to distribute bona vacantia estates.
- Minor
beneficiaries should continue to take a vested interest held on trust until
they reach 18 years of age.
- The
intestacy rules should continue to take no account of property outside the
estate.
- Two options
are presented regarding the method of distribution to descendants where
their parent predeceased the deceased:
- Option
One — retain the per stirpes (by family) distribution.
- Option
Two — introduce a limited per capita (by head) distribution at each
generation.
QUESTIONS
CHAPTER 7
Succession
and taonga
IN THIS CHAPTER, WE CONSIDER:
- the nature of
taonga, including whenua Māori;
- how taonga might
be defined in a succession context; and
- whether taonga
should not be subject to general succession law and instead be governed by
tikanga Māori.
INTRODUCTION
- 7.1 This chapter
considers whether state succession laws should expressly provide that those
laws would not apply to taonga but that
tikanga Māori should instead
apply.
WHENUA MĀORI
- 7.2 Whenua
Māori holds a central place in Māori cultural practices and law.1 The whakataukī “Te
toto o te tangata he kai; te oranga o te tangata he whenua” (Food is the
blood of a person, but
the well-being of a person lies in the land)2 demonstrates the importance of
whenua to Māori. Every Māori shares descent lines to
Papatūānuku and so has a whakapapa
relationship with whenua.3
- 7.3 Prior to the
introduction of Pākehā law, Māori had an established system of
land tenure grounded in tikanga Māori.
4 Today, succession to whenua
Māori is determined by a
- Te
Aka Matua o te Ture | Law Commission The Taking into Account of Te Ao Maori
in Relation to Reform of the Law of Succession (NZLC MP6, 1996) at 25.
- This
is the translation used in Jacinta Ruru and Leo Watson “An Introduction to
Māori land, Taonga and the Māori Land
Court” (paper presented to
Property Law Conference – Change, it’s inevitable!, Auckland, 28
June 2018) at 2.
- See
Te Aka Matua o te Ture | Law Commission The Taking into Account of Te Ao
Maori in Relation to Reform of the Law of Succession (NZLC MP6, 1996) at
13–15; and Cleve Barlow Tikanga Whakaaro: Key Concepts in Māori
Culture (Oxford University Press, Auckland, 1994) at 171–175.
- See
generally IH Kawharu Māori Land Tenure: Studies of a Changing
Institution (Clarendon Press, Oxford, 1977); George Asher and David Naulls
Māori Land (New Zealand Planning Council, Wellington, 1987); and
Caren Wickliffe, Stephanie Milroy, Matiu Dickson Laws of New Zealand
Māori Land (online ed). This system may still be practised today,
although it is not recognised by state law.
special legislative regime under Te Ture Whenua Maori Act 1993 (TTWMA) that, in
theory, allows succession to whenua Māori in
a way that reflects tikanga
Māori. 5 However,
succession to all other property owned by Māori is determined by
general succession law.6
- 7.4 This chapter
assumes the continuation of TTWMA for whenua Māori and asks whether there
are other taonga that should also
be excluded from the general law of
succession. If such taonga are to be so excluded and instead governed by
tikanga, how should
this be expressed in legislation?
TTWMA
- 7.5 TTWMA
is the first piece of Māori land legislation that seeks to retain, rather
than alienate, Māori interests in their
whenua. 7 Its enactment represented a
substantial shift in recognition of the centrality of whenua Māori to the
well-being of Māori
generally. TTWMA applies to the remaining five per cent
of whenua in Aotearoa New Zealand that is Māori freehold land.8
- 7.6 TTWMA
recognises that whenua Māori is a taonga tuku iho (something of value
passed down through generations) of special significance
to Māori.9 It controls the determination
of land as whenua Māori and places restrictions on dealing with it,
including through succession.10
The regime under TTWMA restricts alienation of whenua Māori to those
who have a close whakapapa connection to the whenua.11 In doing so, it recognises
the tikanga of maintaining land within the whakapapa lines of the deceased and
their whānau.12
Recent changes to TTWMA
- 7.7 Te
Ture Whenua Maori (Succession, Dispute Resolution, and Related Matters)
Amendment Act came into force on 6 February 2021. The
amendments are intended to
reduce the complexity and compliance requirements faced by Māori when they
engage with the courts.
Changes include the following:13
(a) Simple and uncontested
succession and trust applications can now be heard by the registrar.14
5 Appeal by Ngahuia
Tawhai [1998] NZMAC 1; [1998] NZAR 459 at 469 (Māori Appellate Court).
6 Te Ture Whenua Maori Act 1993, ss
100–103 and 110.
7 Caren Wickliffe, Stephanie Milroy and
Matiu Dickson Laws of New Zealand Māori Land (online ed) at
[11].
8 Te Ture Whenua Maori Act 1993: An
Introduction (Te Puni Kōkiri, Wellington, 1993) at 9.
9 Te Ture Whenua Maori Act 1993,
preamble and s 2.
10 Te Ture Whenua Maori Act 1993, pts 4
and 6.
11 A whāngai is also able to
succeed under Te Ture Whenua Maori Act 1993, s 115.
12 Appeal by Ngahuia Tawhai
[1998] NZMAC 1; [1998] NZAR 459 at 469 (Māori Appellate Court).
- Te
Ture Whenua Maori (Succession, Dispute Resolution, and Related Matters)
Amendment Bill 2019 (179-2) (select committee report) at
1.
14 Te Ture Whenua Maori Act
1993, s 113A.
(b) The determination of whāngai for the purposes of
succeeding to whenua Māori must be made in accordance with the tikanga
of
the relevant iwi or hapū.15
(c) It is no longer possible to leave a life interest in Māori freehold
land to a partner in a will. Instead, rights to occupy
the principal family
home on the land and to receive any income or grants from the interest may
be left to a partner. A similar
change has been made in relation to intestate
estates. This means the descendants of the deceased immediately succeed to the
beneficial
interest in the property.16
(d) Parties may now elect to mediate any dispute over which te Kooti Whenua
Māori | the Māori Land Court (the Māori
Land Court) has
jurisdiction. The new dispute resolution process is designed to resolve
disputes:17
as far as possible, in accordance with the relevant tikanga of the
whānau or hapū with whom they are affiliated, for
both the process
and the substance of the resolution.
(e) The Māori Land Court must now hear all Family Protection Act 1955
(FPA) and Law Reform (Testamentary Promises) Act 1949 (TPA)
claims if the claim
relates only to Māori freehold land.18
- 7.8 In its
review of the Property (Relationships) Act 1976 (PRA), the Commission considered
the issues relating to family homes on
whenua Māori and recommended that
the Government should consider providing remedies in relation to family homes
built on whenua
Māori through TTWMA.19 We are unsure whether the
changes to TTWMA have resolved these issues in practice and seek feedback on
this question.
Land lost following the 1967 amendments to the Māori
Affairs Act 1953
- 7.9 During
our preliminary consultation with Māori, a recurring concern was the effect
of the 1967 amendments to the Māori
Affairs Act 1953. 20 Those amendments allowed
the registrar of the Māori Land Court to change the status of Māori
freehold land to general
land if it had fewer than five owners.21 This resulted in much of the
land being removed from the appropriate whakapapa line by sale or transfer
to those who did not
whakapapa to the land. This commonly happened through
succession, as on intestacy, the owner’s interest would pass to their
partner who was not a descendant of the land. We received similar feedback in
the PRA review.22
15 Te Ture Whenua Maori
Act 1993, s 114A.
16 Te Ture Whenua Maori Act 1993, ss
108A and 109AA.
17 Te Ture Whenua Maori Act 1993, pt
3A.
18 Family Protection Act 1955, s 3A;
and Law Reform (Testamentary Promises) Act 1949, s 5.
- See
Te Aka Matua o te Ture | Law Commission Review of the Property
(Relationships) Act 1976 | Te Arotake i te Property (Relationships) Act
1976 (NZLC R143, 2019) at R80 and
[14.29]–[14.30].
20 Maori
Affairs Amendment Act 1967.
21 Maori Affairs Amendment Act 1967, pt
1.
- Te
Aka Matua o te Ture | Law Commission Review of the Property (Relationships)
Act 1976 | Te Arotake i te Property (Relationships) Act 1976 (NZLC
R143, 2019) at [14.43].
- 7.10 There is a
mechanism for changing the status of land from general land to Māori
freehold land under TTWMA.23
Although it can be difficult to achieve as the court must be satisfied
there is sufficient agreement among owners, it provides an
avenue for those who
have interests in land affected by the 1967 amendments to change the land back
into Māori freehold land
if they wish. The remedy for land that has passed
outside the appropriate whakapapa line because of the 1967 amendments is not
something
we can address in this review. We think it may be better suited to
separate consideration by Māori and the Crown.
SUCCESSION TO TAONGA OTHER THAN WHENUA MĀORI
Taonga
- 7.11 Items that
from an ao Māori perspective are of particular concern to a whānau or
hapū or iwi could be excluded
from the application of general succession
law. Items that are highly prized by the collective on succession might be items
that:24
(a) are held
communally on behalf of whānau, hapū or iwi;
(b) have been inherited from ancestors;
(c) were received through tuku (gifts);
(d) have mana or tapu connotations;
(e) change culturally after death, for example body parts; or
(f) can otherwise be subsumed under the term taonga.
- 7.12 Items that
fall under these categories arguably ought not to be treated as personal
property of the deceased as the deceased
is not an owner in the ordinary sense,
but rather holds a kaitiaki role over these items on behalf of a whānau or
hapū.
Any new kaitiaki of such items may be outside the immediate family of
the deceased and not necessarily of the deceased’s choosing.
25 Examples may include korowai
(cloaks), whakairo (carvings), items closely associated with the deceased that
become more tapu after
they have died, or whenua Māori that is not
Māori freehold land. Although we recognise taonga may hold a wider meaning,
for the purposes of this chapter, we will use the word to describe tangible
items that are highly prized by the collective.
Removing taonga from the general law of succession
- 7.13 If
taonga were to be clearly exempt from the general law of succession, there
would need to be express statutory provisions
to that effect. This might be
achieved through amending the definition of “estate” in the
Administration Act 1969
and the definition of “property” in section
8(5) of the Wills Act 2007 to exclude taonga. Taonga would
also
23 Te Ture Whenua Maori
Act 1993, s 133.
- See
Te Aka Matua o te Ture | Law Commission The Taking into Account of Te Ao
Maori in Relation to Reform of the Law of Succession (NZLC MP6, 1996) at
35.
- Te
Aka Matua o te Ture | Law Commission The Taking into Account of Te Ao Maori
in Relation to Reform of the Law of Succession (NZLC MP6, 1996) at 46; and
Jacinta Ruru “Taonga and family chattels” [2004] NZLJ 297 at
298.
need to be excluded from property that may be available to satisfy claims
against an estate under the new Act.26
- 7.14 We have
heard during our preliminary consultation that disputes over taonga do not
usually make their way into the courts.
27 Tikanga operates on a
day-to-day basis in Aotearoa New Zealand and disputes involving taonga are
usually resolved within the
whānau or hapū to which they belong. It
is possible that creating a statutory exclusion of these items would simply
recognise
what is already happening in practice: that taonga are being
succeeded to according to tikanga outside the general law of
succession.
Defining taonga
- 7.15 If
removing taonga from the general law of succession is desirable, taonga would
need to be defined within general succession
law to exclude it. This could be
done by defining taonga according to the tikanga of the relevant whānau or
hapū. Under
this approach tikanga would determine whether or not an item
was subject to the general rules of succession. Professor Jacinta Ruru
suggested
the following definition in 2004:28
[A] valued possession held
in accordance with tikanga Maori and highly prized by the whanau, hapu or
iwi.
- 7.16 In the PRA
review, the Judges of the Māori Land Court commented that, if taonga was to
be defined, the Waitangi Tribunal's
definition of “taonga work” in
its Ko Aotearoa Tēnei (Wai 262) Report may be useful to consider in this
context:29
A taonga work is
a work, whether or not it has been fixed, that is in its entirety an expression
of mātauranga Māori; it
will relate to or invoke ancestral
connections, and contain or reflect traditional narratives or stories. A taonga
work will possess
mauri and have living kaitiaki in accordance with tikanga
Māori.
- 7.17 Alternatively,
a more prescriptive definition might be adopted. Such an approach may assist
decision-makers who have to determine
whether an item is a taonga. However,
there are known risks with a prescriptive definition that have been demonstrated
by the inclusion
of kupu Māori (Māori words) in other statutes.30
- This
would include relationship property entitlements, family provision and
contribution claims, and claims by unsecured creditors.
- Although,
they are sometimes subject to agreements between the parties that may be reached
through whānau hui or whānau
mediation facilitated by the Māori
Land Court.
28 Jacinta Ruru
“Taonga and family chattels” [2004] NZLJ 297 at 298.
- Te
Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Ko
Aotearoa Tēnei: A Report into Claims Concerning New Zealand Law and Policy
Affecting Māori Culture and Identity –
Te Taumata Tuatahi (Wai
262, 2011) at 54; and Te Aka Matua o te Ture | Law Commission Review of the
Property (Relationships) Act 1976 | Te Arotake i te Property
(Relationships) Act 1976 (NZLC R143, 2019) at [14.42].
- Examples
include the use of “kaitiakitanga” in the Resource Management Act
1991 and “whanaungatanga” in the
Oranga Tamariki Act 1989. See for
example Takamore Trustees v Kapiti Coast District Council [2003] 3 NZLR
496 (HC); Tautari v Northland Regional Council [1996] NZPT 172; and
Minhinnick v Minister of Corrections [2004] EnvC 109. The inclusion of
whanaungatanga within the Oranga Tamariki Act 1989 is a recent development and
has not yet fully
been tested in the courts.
Should taonga be limited to items that hold cultural
significance for Māori?
- 7.18 “Taonga”
is a kupu Māori that originates from a Māori perspective. Arguably,
items that in practice have
similar properties as taonga should not be
considered taonga if they have no connection to Māori culture. For example,
an item
may be a gift handed down, hold special significance and carry with it
communal obligations but was not owned, held, or made by a
Māori person or
have any Māori association or content.31 Under this view such items
are not taonga.
- 7.19 Another
view would be that taonga may have a much broader definition not limited to
items that have a connection to Māori
culture. This view arose in the
context of the PRA, where section 2 of the Act excludes taonga from the
definition of family chattels
but does not define taonga. The courts initially
took a broad interpretation to taonga in the PRA context and this interpretation
was not Māori-specific. 32
In Page v Page, Durie J commented that the “ordinary and
everyday use” of taonga would encompass “without difficulty”
the artworks of a non-Māori person’s mother that the plaintiff had
inherited.33 This approach
to taonga would include items that had no connection with Māori culture.
It may be that, to be a taonga under
this view, an item must have certain
properties that are inherently Māori, even though these are not
recognised by the possessor.
Or it may extend to items that from a Māori
perspective do not have any mauri, tapu, or other intrinsic properties that
may
contribute to a Māori understanding of taonga.
- 7.20 In a 2012
case under the PRA, te Kōti Whānau | the Family Court concluded that
taonga should be defined within a tikanga
Māori construct but the concept
could be applied pan- culturally provided the central elements of tikanga were
shown to exist.34 The Court
relied on evidence from Professor Paul Tapsell that for an item to become
taonga, it must be accompanied, through a marae
or marae-like setting, with
elements of whakapapa, mana, tapu and kōrero.35
- 7.21 In the PRA
review, the Commission recommended that the new Relationship Property Act should
ensure that taonga cannot be classified
as relationship property in any
circumstances and that a court cannot make orders requiring a partner to
relinquish taonga as compensation
to the other partner. 36 This recommendation was made
to
- See
Jacinta Ruru “Taonga and family chattels” [2004] NZLJ 297 for a
wider discussion of taonga within the context of the PRA.
- Page
v Page [2001] NZHC 592, (2001) 21 FRNZ 275; Perry v West (2002) 21
FRNZ 575 (DC); and Perry v West [2004] NZFLR 515 (HC).
- Page
v Page [2001] NZHC 592, (2001) 21 FRNZ 275 at [46]. Note that this was
obiter dicta and the Judge also stated he had not considered the meaning of
“taonga” in the context
of the
PRA.
34 S v S [2012]
NZFC 2685 at [54(b)] and [58].
- S
v S [2012] NZFC 2685 at [57]. Professor Jacinta Ruru and Leo Watson have
observed that S v S has “provided a more Māori-aligned
precedent for understanding taonga”: Jacinta Ruru and Leo Watson
“Should
Indigenous Property be Relationship Property?” in Jessica
Palmer and others (eds) Law and Policy in Modern Family Finance
(Intersentia, Cambridge, 2017) 203 at 218.
- Te
Aka Matua o te Ture | Law Commission Review of the Property (Relationships)
Act 1976 | Te Arotake i te Property (Relationships) Act 1976 (NZLC
R143, 2019) at R82 and [14.46].
recognise that kaitiakitanga should be prioritised over division of taonga, in
accordance with the Māori worldview.37
- 7.22 The
Commission also recommended that taonga should be statutorily defined within a
tikanga Māori construct but the definition
should exclude land. We
concluded that treating land that does not have the status of Māori land
under TTWMA as taonga and excluding
it from division under the new relationship
property statute would exceed the protections given to it under TTWMA.38 We also suggested that
Māori should be consulted to inform the drafting of any definition of
taonga.39
- 7.23 We discuss
tikanga and the resolution of succession disputes in Chapter
15.
QUESTIONS
|
|
Q25
|
Will the recent changes to Te Ture Whenua Maori Act resolve issues in
relation to
|
family homes built on Māori land?
|
Q26
|
Is taonga an appropriate description of items that might be excluded from
general
|
succession law? If not, is there a more appropriate kupu
Māori to use?
|
Q27
|
Should taonga be excluded from general succession law?
|
|
Q28
|
Should taonga be subject to tikanga to determine how it is succeeded to? If
so,
|
how should this be given effect?
|
Q29
|
Should taonga, or some other appropriate kupu, be defined by reference to
tikanga
|
Māori? If so, should the relevant tikanga be that of the relevant
whānau, hapū or iwi?
|
Q30
|
Should taonga, or some other appropriate kupu, be limited to items that
are
|
connected to Māori culture?
|
- Te
Aka Matua o te Ture | Law Commission Review of the Property (Relationships)
Act 1976 | Te Arotake i te Property (Relationships) Act 1976 (NZLC
R143, 2019) at [14.47].
- Te
Aka Matua o te Ture | Law Commission Review of the Property (Relationships)
Act 1976 | Te Arotake i te Property (Relationships) Act 1976 (NZLC
R143, 2019) at R81 and [14.43]. Although TTWMA does not specifically protect
general land owned by Māori, there are mechanisms
for converting it into
Māori freehold land.
- Te
Aka Matua o te Ture | Law Commission Review of the Property (Relationships)
Act 1976 | Te Arotake i te Property (Relationships) Act 1976 (NZLC
R143, 2019) at [14.44].
CHAPTER 8
Weaving
new law
IN THIS CHAPTER, WE CONSIDER:
- how responsible
kāwanatanga involves recognising and providing for Māori perspectives
in state law; and
- how tikanga
might recognise and respond to the expression of testamentary wishes, intestacy,
obligations to a surviving partner and
other family members (particularly
children), and obligations to someone who has contributed to the deceased or the
estate
INTRODUCTION
- 8.1 The Treaty
contemplates not only the exercise of tino rangatiratanga by Māori on a
daily basis, independently of state law,
but also the exercise of
kāwanatanga by the Crown. We suggest that responsible kāwanatanga
involves recognising and providing
for Māori perspectives in the
development of state law.1
This involves considering tikanga Māori in both defining and
responding to the “problem” rather than just incorporating
tikanga
into a pre-existing model of law.
- 8.2 To develop
this approach, we ask in this chapter how tikanga might recognise and respond
to:
(a) the expression of testamentary wishes;
(b) the distribution of property when there is no expression of testamentary
wishes;
(c) a deceased’s obligations to a surviving partner on their
partner’s death;
(d) a deceased’s obligations to other family members, particularly
tamariki (children); and
(e) a deceased’s obligations to someone who has contributed to the
deceased or the estate.
- 8.3 To provide
context to these questions, and to facilitate feedback, we have sought in this
chapter to identify key tikanga perspectives
as well as highlighting the
relevant state law.
- See
the discussion in Joseph Williams “Lex Aotearoa: An Heroic Attempt to Map
the Māori Dimension in Modern New Zealand
Law” [2013] WkoLawRw 2; (2013) 21 Waikato L
Rev 1 at 12; and Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi
Tribunal Ko Aotearoa Tēnei: A Report into Claims Concerning New
Zealand Law and Policy Affecting Māori Culture and Identity
–
Te Taumata Tuatahi (Wai 262, 2011) at 246.
These questions address the rights and obligations at the heart of this review,
and they have already been considered from a state
law perspective in Chapters
2—6.
- 8.4 We recognise
too the importance of weaving tikanga into the matters we discuss in Part 3 in
relation to making and resolving claims.
We discuss tikanga and dispute
resolution in Chapter 15. However, tikanga may affect other matters, such as the
role of personal
representatives when succession disputes arise among
whānau members. We welcome feedback on any other areas where state law
ought to recognise and respond to tikanga and any kawa (protocols) necessary to
enliven that tikanga.
- 8.5 It is
important to recognise and acknowledge the risk in attempting to reconcile
tikanga and the values reflected in current state
law, given its largely British
origins. The two different systems are born from different societal and cultural
roots.2 Care must be taken
not to assume likeness where it does not exist and to recognise that certain
tikanga concepts may lose their meaning
when divorced from those cultural
roots.3 On the other hand,
there may be similarities, the values may enrich each other and they may
co-exist to contribute to the making of
better law.4 We seek to mitigate the risks
by looking at these issues from first principles. We are also mindful of the
need to contemplate tikanga
operating in a contemporary context.
- 8.6 In chapter 1
we outline criteria for good succession law. In summary, the criteria are
to:
(a) sustain property rights and expectations;
(b) promote positive outcomes for families and whānau in Aotearoa New
Zealand; and
(c) assist efficient estate administration and dispute resolution.
- 8.7 In our view,
these criteria are valuable from both Māori and non-Maori perspectives. We
do recognise, however, that sometimes
they may not all be able to cohabit in the
same space, and Māori may afford different priorities to certain objectives
where
they are in tension with one another.
TIKANGA AND TESTAMENTARY FREEDOM
- 8.8 We
know little about the place of testamentary freedom within contemporary
Māori values. Many Māori may value their
individual property rights
and see testamentary freedom as a further expression of their mana. Other
Māori, however, may see
communal obligations as paramount and place less
weight on their own personal choices regarding their property. Often, these two
views may be held in tension.
- See
generally Te Aka Matua o te Ture | Law Commission The Taking into Account of
Te Ao Maori in Relation to Reform of the Law of Succession (NZLC MP6, 1996);
Joseph Williams “Lex Aotearoa: An Heroic Attempt to Map the Māori
Dimension in Modern New Zealand Law”
[2013] WkoLawRw 2; (2013) 21 Waikato L Rev 1; Te
Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Ko
Aotearoa Tēnei: A report into Claims Concerning New Zealand Law and Policy
Affecting Māori Culture and Identity (Wai 262); Anne Salmond Tears
of Rangi: Experiments Across Worlds (Auckland University Press, Auckland,
2020); Hirini Moko Mead Tikanga Māori: Living by Māori Values
(rev ed, Huia Publishers, Wellington, 2016).
- See
Annette Sykes “The myth of Tikanga in the Pākehā Law” (Nin
Tomas Memorial Lecture 2020, Te Whare Wānanga
o Tāmaki Makaurau |
University of Auckland, Auckland, 5 December 2020).
- See
Nin Tomas “Maori Concepts of Rangatiratanga, Kaitiakitanga, the
Environment, and Property Rights” in David Grinlinton
and Prue Taylor
(eds) Property Rights and Sustainability: The Evolution of Property Rights to
Meet Ecological Challenges (Martinus Nijhoff Publishers, Leiden, 2011) 219
at 240–241.
- 8.9 In the
Succession Survey, when asked whether a person should be allowed to leave family
members out of their will, 82 per cent
of Māori respondents agreed.5 This was higher than 80 per
cent of the overall population who agreed but close to the 83 per cent of those
agreeing who identified
as European. 6 These findings suggests that
Māori, like other groups, value testamentary freedom.
- 8.10 The
significance of testamentary freedom emerges in the following discussion,
particularly in considering how tikanga might operate
to alter the wishes
expressed in a will or the rules of intestacy.
QUESTIONS
|
|
Q31
|
What value is placed on testamentary freedom in tikanga, and how might this
be
|
appropriately recognised in state law?
|
ŌHĀKĪ
- 8.11 Ōhākī
may be understood loosely as an oral will.7 The physical act of giving an
ōhākī is something close to a “deathbed declaration”,
which is made as a
person recognises the signs of oncoming death.8 It is ideally made in the
kāinga of the person dying, in the presence of their whānau. 9 The whānau recognise the
situation and treat it with appropriate respect.10
- 8.12 Ōhākī
must be understood within the particular context in which it is practised.11 There is no universal
approach or standardised practice for ōhākī, although similar
tikanga values are present throughout.
The person giving the
ōhākī usually has a heightened tapu because they are close to
death.12 Whanaungatanga plays
an important role, as the ōhākī
- Ian
Binnie and others Entitlements to deceased people’s property in New
Zealand: Public attitudes and values – A general population survey
(Te Whare Wānanga o Ōtākou | University of Otago, research
report to the Michael and Suzanne Borrin Foundation, Dunedin,
April 2021) at
[96].
- Ian
Binnie and others Entitlements to deceased people’s property in New
Zealand: Public attitudes and values – A general population survey
(Te Whare Wānanga o Ōtākou | University of Otago, research
report to the Michael and Suzanne Borrin Foundation, Dunedin,
April 2021) at
[96].
- Te
Aka Matua o te Ture | Law Commission The Taking into Account of Te Ao Maori
in Relation to Reform of the Law of Succession (NZLC MP6, 1996) at
31.
8 Te Aka Matua o te Ture |
Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9,
2001) at 119–120.
9 Norman Smith Maori Land Law
(AH & AW Reed, Wellington, 1960) at 59.
10 Te Aka Matua o te Ture | Law
Commission Māori Custom and Values in New Zealand Law (NZLC SP9,
2001) at 120.
- A
review of the available literature reveals different approaches to
ōhākī. In our preliminary consultation with Māori
we heard
stories about how ōhākī was practised and understood in different
ways within different
whānau.
12 Hirini Moko
Mead Tikanga Māori: Living by Māori Values (rev ed, Huia
Publishers, Wellington, 2016) at 54.
is given and validated in the presence of the whānau. Mana can help
determine the weight attributed to an ōhākī.13
- 8.13 It is
unclear exactly how long ōhākī has been practised, but it is a
Māori practice that pre- dates European
contact. In 1895,
ōhākī were recognised by the Native Appellate Court.14 Within the year, legislative action was
taken to abolish ōhākī as a legally recognised custom.15 However, judges continued to
give it effect for some years after 1895.16
- 8.14 Today,
ōhākī remain unrecognised by state law. Certain requirements
under the Wills Act 2007 prevent ōhākī
from operating as a means
of testamentary disposition within current state law.17 Māori may wish to have
the choice to make either a written will or an ōhākī and have the
ōhākī
enforced under state law. During the passage of the Wills
Act through Parliament, ōhākī were discussed many times
by
members of the Māori Party, who expressed a wish for them to be recognised
within the law.18
|
|
Q32
|
Should ōhākī be recognised in state law as a will or an
alternative but equally valid
|
form of testamentary disposition? What would be appropriate requirements to
evidence ōhākī?
|
Q33
|
Do written wills also provide a valuable opportunity for Māori to
express
|
testamentary freedom?
|
If ōhākī were to be recognised in state law,
consideration would need to be given to how their terms would be established.
This may require whānau members present providing some evidence of what the
deceased said.
QUESTIONS
- See
the example given by the Hon Dr Pita Sharples concerning the second Māori
king, Tāwhiao: (10 October 2006) 634 NZPD 5565.
- “Native
Land Court and Native Appellate Court: (Decisions of) Relative to Wills in
Favour of Europeans and the Adoption and
Succession of Children” [1907]
III AJHR G-5 at 11.
15 The
Native Land Laws Amendment Act 1895, s 33.
- Tom
Bennion and Judi Boyd Succession to Maori Land, 1900–52 (Te
Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal, Rangahaua
Whanui National Theme P, 1997) at 12–13 and
36. See Chapter 15 for further
discussion of the role of te Kooti Whenua Māori | the Māori Land Court
and its predecessors
in succession law.
- See
Wills Act 2007, ss 6, 8 and 11. In effect, these mean that a will must be in
writing, signed and witnessed to have effect
as a testamentary instrument.
But see Pfaender v Gregory [2018] NZHC 161 at [30]–[32], where
the Court validated a transcript of an audio recording under s
14.
18 (10 October 2006) 634
NZPD 5565; (8 May 2007) 639 NZPD 9003–9005; (23 August 2007) 641 NZPD
11458–11460.
INTESTACY
Rates
of will-making among Māori
- 8.16 Māori
are more likely than non-Māori to die without making a will.19 Current state law provides
that the property of anyone who dies intestate will be distributed according
to the rules of the Administration
Act 1969 or of Te Ture Whenua Maori Act
1993 (TTWMA), if it is Māori land. There are many factors that
influence the low
rate of will-making among Māori, including the costs
involved and the apprehension that will-making is a karanga mate (call
to
death).
- 8.17 Māori
rates of will-making may also be affected by the lack of recognition given to
ōhākī within state law,
as discussed above.20
Recognition of indigenous laws in overseas intestacy
legislation
- 8.18 Several
Australian state or territory jurisdictions have a statutory right under which
indigenous people may make an application
to the courts to have an intestate
estate distributed according to a “plan of distribution” that
reflects the traditions
of the community or group to which the deceased
belonged.21 The regimes have
been rarely used. We are only aware of one case in the Northern Territory and
three in New South Wales as of 2021.22 Victoria considered and
rejected adopting similar legislation on the basis that it “does not
provide a different starting point
for Indigenous people.”23
- 8.19 The Law
Reform Commission of Western Australia took a different approach,
recommending:24
That the
list of persons entitled to claim against a testate or intestate estate of an
Aboriginal person under s 7 of the Inheritance
(Family and Dependants Provision)
Act 1972 (WA) be extended to include a person who is in a kinship relationship
with the deceased
- Based
on data included in an email from Commission for Financial Capability to Te Aka
Matua o te Ture | Law Commission regarding data
on wills (4 October 2019). This
does not suggest that more Māori than non-Māori die without expressing
their testamentary
wishes, only that more Māori than non-Māori die
without a valid will under the Wills Act 2007. In the Succession Survey,
41 per
cent of Māori respondents said they had a will, compared with 64 per cent
of New Zealand Europeans: Ian Binnie and others
Entitlements to deceased
people’s property in New Zealand: Public
attitudes and
values – A general population survey (Te Whare Wānanga o
Ōtākou | University of Otago, research report to the Michael and
Suzanne Borrin Foundation, Dunedin,
April 2021).
- The
requirements under the Wills Act 2007 that a will must be in writing, signed and
witnessed prevent ōhākī from being
a valid testamentary
instrument under that Act.
- See
for example Succession Act 2006 (NSW), ss 133–135; and Intestacy Act 2010
(Tas), ss 34–36. Northern Territory incorporated provisions specific to
intestate Aboriginals into its Administration and Probate Act in 1979: see
Administration and Probate Act 1969 (NT), ss 71–71F.
- Application
by the Public Trustee for the Northern Territory [2000] NTSC 52; Re
Estate Wilson, Deceased [2017] NSWSC 1, (2017) 93 NSWLR 119; Re Tighe
[2018] NSWSC 163; and Re Estate Jerrard, deceased [2018] NSWSC 781,
(2018) 97 NSWLR 1106.
- Victorian
Law Reform Commission Succession Laws (Report, 2013) at [5.172]. South
Australia also did not adopt similar laws, on the basis that further research
was needed: see South
Australian Law Reform Institute ‘Distinguishing
between the Deserving and the Undeserving’: Family Provision Laws in South
Australia (Report 9, 2017) at R28.
- Law
Reform Commission of Western Australia Aboriginal Customary Laws: The
interaction of Western Australia law with Aboriginal law and culture (R94,
2006) at 242 (emphasis removed).
which is recognised under the customary law of the deceased and
who at the time of death of the deceased was being wholly or partly
maintained
by the deceased.
- 8.20 The
recommendations have not been adopted into legislation.25
Intestacy rules and our preliminary views on reform
- 8.21 The
current rules in the Administration Act prioritise the deceased person’s
partner and issue (descendants), followed
by parents, siblings, grandparents,
aunts and uncles, with the intention of reflecting what it is thought most
intestate people would
have done had they made a will.26 A surviving partner takes the
personal chattels. These rules apply to all property in an intestate estate
besides Māori land.
Whāngai children are not eligible to inherit under
these rules.
- 8.22 In Chapter
6, we present three reform options for how to prioritise partners and
descendants, and three reform options for how
to prioritise parents and siblings
where there is no partner or descendant. We have expressed a preliminary view
that taonga be excluded
from the definition of personal chattels under the
intestacy rules. In Chapter 7, we consider whether taonga should be further
protected.
- 8.23 In Chapter
6, we present two options regarding whāngai and the intestacy regime. The
first is to exclude whāngai from
being eligible under the regime to avoid
litigation over intestate estates for Māori and because a will can be made
to include
whāngai. The second is to allow provision to be made for
whāngai depending on the tikanga of the relevant whānau or
hapū.
- 8.24 There are
unique intestacy provisions in Te Ture Whenua Maori Act 1993 that apply to
Māori land. Section 109 provides that
the persons entitled to inherit upon
intestacy are the deceased’s children in equal shares and, if there are no
children, the
brothers and sisters of the deceased.27 Section 115 of the TTWMA
allows the Māori Land Court to make provision for whāngai according to
the tikanga of the relevant
hapū or iwi.
Intestacy and tikanga
- 8.25 The
intestacy regime operates as a default distribution of property where the
deceased left no valid will. Before asking how
tikanga might shape the
appropriate distribution of property in the intestacy regime, it may be better
to ask whether tikanga would
even support a default system of distribution.28 It may be more appropriate
for the distribution of the deceased’s property to be subject to
collective debate and decision-making
amongst the whānau rather than
prescribed by a fixed set of rules in state law.29
25 The Inheritance (Family
and Dependants Provision) Act 1972 (WA) does not make any mention of kinship
relationships.
- See
s 77 of the Administration Act 1969; and the speech of Hon Rex Mason when
introducing the Administration Bill: (23 November 1944)
267 NZPD at
288–289. We outline the intestacy rules in detail in Chapter 6.
- If
any children of the deceased have died, their issue take their parent’s
share in equal parts. If there are no children or
siblings, the person
“nearest in the chain of title” succeeds.
- See
Nicolaas Platje “Te Ao Māori, Whāngai, and the Law of Intestacy:
A Principled Proposal” (LLB Research Paper,
Te Herenga Waka | Victoria
University of Wellington, 2020) at 17–18.
- See
descriptions of the roles of whānau in Joseph Williams “Lex Aotearoa:
An Heroic Attempt to Map the Māori Dimension
in Modern New Zealand
Law” [2013] WkoLawRw 2; (2013) 21 Waikato L Rev 1 at 23–24; Jacinta Ruru “Kua
tutū te puehu, kia mau: Māori aspirations and family law policy”
in Mark
Henaghan and Bill Atkin (eds) Family Law Policy in New Zealand
(5th
- 8.26 If there is
support among Māori for the intestacy regime to respond to tikanga, the
question becomes how tikanga might shape
the entitlements within it. The
intestacy regime is designed to reflect what most intestate people would have
done if they had made
a will, and the entitlements flow from that. Tikanga may
reveal a different basis on which entitlements should be based and therefore
have different priorities than those in current state law. Different classes of
people than those currently recognised in the regime
may be included, or some
who are currently entitled may be omitted. The approach to proportions given to
different classes may also
differ or tikanga may suggest that a discretionary
approach is required in each individual situation rather than a focus on fixed
entitlements.
- 8.27 There were
no statistically significant differences between Māori and non-Māori
in the various intestacy scenarios
posed in the Succession
Survey.
QUESTIONS
|
|
Q34
|
How does tikanga respond to a situation where someone dies without
expressing
|
any testamentary wishes?
|
Q35
|
Does a default system of rules for the distribution of property when a
person dies
|
intestate accord with tikanga?
|
Q36
|
If so, should the purpose of the intestacy regime be to replicate what most
intestate
|
people would do if they had made a will?
|
Q37
|
Do the current rules or one or more of our reform proposals set out in
Chapter 6
|
reflect tikanga and/or what Māori think about who should receive
their estate if they die without a will?
|
Q38
|
Is there merit in a statutory approach that allows Māori to request
that an intestate
|
estate be distributed in accordance with tikanga? Do any of the approaches
taken in Australia have merit from a tikanga perspective?
|
Q39
|
Should whāngai be eligible to succeed in an intestacy regime? Should
eligibility be
|
determined in accordance with the tikanga of the relevant whānau or
hapū?
|
ed, LexisNexis, Wellington, 2020) 57 at 59–60;
Tāhū o te Ture | Ministry of Justice He Hīnātore ki te Ao
Māori: A Glimpse into the Māori World – Māori Perspectives
on Justice (March 2001) at 30–31. See also Joan Metge
“Succession Law: Background Issues Relating to Tikanga Maori” (paper
prepared for Te Aka Matua o te Ture | Law Commission, 1994) at 8.
OBLIGATIONS TO SURVIVING PARTNERS
Customary
marriage
- 8.28 The
traditional roles of men and women in Māori society can only be understood
in the context of the Māori world view.30 Traditionally, marriage was
not a formal ceremony but relied upon the public expression of whānau
approval for validity. 31
Marriage was a relationship of importance for the whānau and
hapū as much as the spouses because it provided links between
different
whakapapa lines and gave each new generations. 32 However, while marriage was highly
valued, it was not given absolute precedence over other relationships because of
the importance
of whakapapa.33
Māori hold commitment to partner and commitment to descent in
tension.34
- 8.29 Men and
women are considered an essential part of the collective whole, with women
playing a particular role in linking the past,
present and future.35 Women were nurturers and
organisers, valued within their whānau, hapū and iwi.36 Women of rank maintained
powerful positions within the social and political organisations of their tribal
nations. 37 Both men and women had the
capacity to hold property, in contrast to that of their Pākehā
contemporaries.38 Marriage
did not change this, as women continued to hold land that they held prior to
marriage and decisions regarding it were theirs
to make, subject to the wider
community interests.39
- Annie
Mikaere “Māori Women: Caught in the Contradictions of a Colonised
Reality” [1994] WkoLawRw 6; (1994) 2 Waikato L Rev 125 at 125; and Jacinta Ruru
“Indigenous Peoples and Family Law: Issues in Aotearoa/New Zealand”
(2005) 19 IJLPF 327 at 327.
- See
Te Aka Matua o te Ture | Law Commission Justice: The Experiences of
Māori Women | Te Tikanga o te Ture: Te Mātauranga o ngā
Wāhine Māori e pa ana ki tēnei (NZLC R53, 1999) at 19;
Jacinta Ruru “Kua tutū te puehu, kia mau: Māori aspirations and
family law policy” in
Mark Henaghan and Bill Atkin (eds) Family Law
Policy in New Zealand (5th ed, LexisNexis, Wellington, 2020) 57 at 62.
- Jacinta
Ruru “Kua tutū te puehu, kia mau: Māori aspirations and family
law policy” in Mark Henaghan and Bill
Atkin (eds) Family Law Policy in
New Zealand (5th ed, LexisNexis, Wellington, 2020) 57 at 62; and Donna M Tai
Tokerau Durie-Hall “Māori Marriage: Traditional marriages
and the
impact of Pākehā customs and the law” in Sandra Coney (ed)
Standing in the Sunshine: A History of New Zealand Women Since They Won the
Vote (Viking, Auckland, 1993) 186 at 186–187, citing Mark Henaghan and
Bill Atkin (eds) Family Law Policy in New Zealand (Oxford University
Press, Auckland,
1992).
33 Jacinta Ruru
“Kua tutū te puehu, kia mau: Māori aspirations and family law
policy” in Mark Henaghan and Bill
Atkin (eds)
Family Law Policy in New Zealand (5th ed, LexisNexis, Wellington,
2020) 57 at 62.
34 Jacinta Ruru “Kua tutū te
puehu, kia mau: Māori aspirations and family law policy” in Mark
Henaghan and Bill
Atkin (eds)
Family Law Policy in New Zealand (5th ed, LexisNexis, Wellington,
2020) 57 at 60.
- Annie
Mikaere “Māori Women: Caught in the Contradictions of a Colonised
Reality” [1994] WkoLawRw 6; (1994) 2 Waikato L Rev 125 at 125; and Jacinta Ruru
“Indigenous Peoples and Family Law: Issues in Aotearoa/New Zealand”
(2005) 19 IJLPF 327 at 330.
- Te
Aka Matua o te Ture | Law Commission Justice: The Experiences of Māori
Women | Te Tikanga o te Ture: Te Mātauranga o ngā
Wāhine Māori e pa ana ki tēnei (NZLC R53, 1999) at 11.
- Te
Aka Matua o te Ture | Law Commission Justice: The Experiences of Māori
Women | Te Tikanga o te Ture: Te Mātauranga o ngā Wāhine
Māori e pa ana ki tēnei (NZLC R53, 1999) at 14.
- Angela
Ballara “Wāhine Rangatira: Māori Women of Rank and their Role in
the Women’s Kotahitanga Movement of
the 1890s” (1993) 27 NZJH 127 at
133–134.
- Angela
Ballara “Wāhine Rangatira: Māori Women of Rank and their Role in
the Women’s Kotahitanga Movement of
the 1890s” (1993) 27 NZJH 127 at
134; Jacinta Ruru “Indigenous Peoples and Family Law: Issues in
Aotearoa/New Zealand”
(2005) 19 IJLPF 327 at 330.
- 8.30 The primary
social unit for Māori is the whānau. 40 Professor Jacinta Ruru notes
two distinct views on defining whānau membership. 41 The first is a
“descent”-based view, whereby membership is limited exclusively by
descent and excludes most husbands and
wives. The word whānau shares a
meaning with the word whānau (to give birth), which accords with this
descent-based view.42 The
second is an extended view whereby those who participate in whānau
activities are included. Although both views must be held
for an understanding
of whānau, the descent-based view comes to the fore in connection with the
management of group property
and the passing down of mana, land rights and the
trusteeship of taonga.43 We
have heard during our preliminary engagement views that someone may be
considered whānau and participate in whānau activities,
but they
should not succeed to property due to lack of whakapapa connections. Professor
Ruru also notes the varying degrees to which
Māori nuclear families remain
part of a wider whānau.44
- 8.31 Māori
customary marriage does not carry with it rights to property held by the other
spouse, 45 yet if a couple in
a customary marriage are deemed to be in a de facto relationship for the
purposes of the Property (Relationships)
Act 1976 (PRA), they may have rights to
property they would not otherwise have under tikanga. In our PRA review, we did
not recommend
reform to recognise or provide specific rules for Māori
customary marriage in new relationship property law. We concluded that
this is
an important issue with broader significance requiring further consultation with
Māori.46
- 8.32 While we
have not found any specific written discussion of obligations to a surviving
spouse besides those concerning whenua
Māori, the operation of
whanaungatanga, aroha and manaakitanga mean whānau take care of their
members, including undoubtedly
a bereaved partner. This is likely to manifest
itself in care not only for the partner but for any children of the relationship
and
likely involve whānau of both partners. We would like to learn more
about how tikanga might affect ownership or use of property
(other than whenua
Māori) for a surviving partner.
- Te
Aka Matua o te Ture | Law Commission The Taking into Account of Te Ao Maori
in Relation to Reform of the Law of Succession (NZLC MP6, 1996) at
20.
41 Jacinta Ruru “Kua
tutū te puehu, kia mau: Māori aspirations and family law policy”
in Mark Henaghan and Bill
Atkin (eds)
Family Law Policy in New Zealand (5th ed, LexisNexis, Wellington,
2020) 57 at 59–60.
- Tāhū
o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A
Glimpse into the Māori World – Māori Perspectives on Justice
(March 2001) at 30; HW Williams A Dictionary of the Maori Language
(7th ed, Government Printer, Wellington, 1971) at definition of
“whānau”; and Te Aka Matua o te Ture | Law Commission
Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at
41.
43 Jacinta Ruru “Kua
tutū te puehu, kia mau: Māori aspirations and family law policy”
in Mark Henaghan and Bill
Atkin (eds)
Family Law Policy in New Zealand (5th ed, LexisNexis, Wellington,
2020) 57 at 59–60.
44 Jacinta Ruru “Kua tutū te
puehu, kia mau: Māori aspirations and family law policy” in Mark
Henaghan and Bill
Atkin (eds)
Family Law Policy in New Zealand (5th ed, LexisNexis, Wellington,
2020) 57 at 60–61.
45 Jacinta Ruru "Implications for
Māori: Historical Overview" in Nicola Peart, Margaret Briggs and Mark
Henaghan (eds)
Relationship Property on Death (Thomson Reuters, Wellington, 2004) 445
at 450–451.
- Te
Aka Matua o te Ture | Law Commission Review of the Property (Relationships)
Act 1976 | Te Arotake i te Property (Relationships) Act 1976 (NZLC
R143, 2019) at [14.4] and [14.19].
Equal sharing of relationship property
- 8.33 The
PRA regime is underpinned by a strong presumption of equal sharing of
relationship property.47
Māori land is excluded from the regime, and so is not available to be
divided as relationship property.48
This is generally aligned with Māori thinking.49 Taonga that fall under the
definition of family chattels are also excluded.50 However, aside from these two
exceptions the presumption of equal sharing of relationship property
applies.
- 8.34 In our
review of the PRA, we asked whether there should be a separate regime for
property division according to tikanga. We received
very few submissions on this
point, and in our final report, we recommended that the framework of the new
Relationship Property Act
for division of property on separation should continue
to accommodate and respond to matters of tikanga.51 We also recommended that
taonga be defined within a tikanga construct, excluded from relationship
property and not made available
to be awarded as compensation to the other
partner. 52 We did not
recommend reform to recognise or provide specific rules for Māori customary
marriage.53
- 8.35 We do not
suggest that the contributions to a relationship that give rise to a presumption
of equal sharing under state law are
not given equal weight from a Māori
perspective. In fact, traditionally, Māori valued the contributions of
women much more
than their colonial counterparts. 54 However, whether those
contributions should give rise to a legal presumption of equal sharing may be
less clear if more weight is
afforded to descent lines. This may also be
affected by the nature of the property being considered.
- Under
the Property (Relationships) Act 1976, certain property a person owns is
classified as “relationship property” which
is divided equally
between partners upon seperation. Broadly, “relationship property”
captures property acquired or produced
by either partner during the
relationship, the family home and chattels, and property acquired for the common
use or benefit or both
partners. See Te Aka Matua o te Ture | Law Commission
Review of the Property (Relationships) Act 1976 | Te Arotake i te
Property (Relationships) Act 1976 (NZLC R143, 2019) at
[3.12]–[3.12].
- Property
(Relationships) Act 1976, s 6. We supported this position in our review of the
PRA: see Te Aka Matua o te Ture | Law Commission
Review of the Property
(Relationships) Act 1976 | Te Arotake i te Property (Relationships) Act
1976 (NZLC R143) at [14.23]. Although note the recent amendments to Te Ture
Whenua Maori Act contemplate a surviving partner being able
to live on a
principal family home on Māori land along with receiving income in relation
to the deceased’s interest in
land: Te Ture Whenua Maori Act 1993, ss 108A
and 109AA.
49 Jacinta Ruru
“Kua tutū te puehu, kia mau: Māori aspirations and family law
policy” in Mark Henaghan and Bill
Atkin (eds)
Family Law Policy in New Zealand (5th ed, LexisNexis, Wellington,
2020) 57 at 90.
50 Property (Relationships) Act 1976, s
2 definition of “family chattels”.
- Te
Aka Matua o te Ture | Law Commission Review of the Property (Relationships)
Act 1976 | Te Arotake i te Property (Relationships) Act 1976 (NZLC
R143, 2019) at R79 and [14.59]. We acknowledged that the limited number of
submissions the Commission received did not mean
that Māori do not have
anything to say about the PRA, nor does it indicate that the current rules work
satisfactorily for Māori.
- Te
Aka Matua o te Ture | Law Commission Review of the Property (Relationships)
Act 1976 | Te Arotake i te Property (Relationships) Act 1976 (NZLC
R143, 2019) at R82.
- Te
Aka Matua o te Ture | Law Commission Review of the Property (Relationships)
Act 1976 | Te Arotake i te Property (Relationships) Act 1976 (NZLC
R143, 2019) at [14.19].
- See
generally Angela Ballara “Wāhine Rangatira: Māori Women of Rank
and their Role in the Women’s Kotahitanga
Movement of the 1890s”
(1993) 27 NZJH 127; Te Aka Matua o te Ture | Law Commission The Taking into
Account of Te Ao Maori in Relation to Reform of the Law of Succession (NZLC
MP6, 1996) at 29–30; and Te Aka Matua o te Ture | Law Commission
Justice: The Experiences of Māori Women | Te Tikanga o te Ture:
Te Mātauranga o ngā Wāhine Māori e pa ana ki tēnei
(NZLC R53, 1999).
- 8.36 In the
Succession Survey, respondents were given a scenario where the deceased was
survived by a wife. In his will, the deceased
left the home to his children even
though, had the couple divorced, the wife would have been entitled to a half
share of the home.
Over 75 per cent of respondents either agreed or strongly
agreed that the wife should be entitled to at least a half share of the
home
regardless of what the will said.55
There was no statistically significant difference between the views of
Māori.56
The choices when a partner dies
- 8.37 Under
the PRA, a partner may accept what their deceased partner has left them under
their will or choose to receive the share
of relationship property they would
have received had the couple separated while both were alive.57 This is based on the
“no worse off” principle. That is, a surviving partner should be no
worse off on the death of their
partner than if they had hypothetically
separated while both parties were alive. Leaving aside the entitlement to share
relationship
property, as discussed above, this raises a further question about
how tikanga articulates responsibility to the surviving partner.
Sections 18 and 19 of the Wills Act
- 8.38 We
discuss the nature of Māori customary marriage above. Sections 18 and 19 of
the Wills Act set out the effect of entering
and ending relationships on the
wills of spouses and partners. These provisions are discussed in Chapter 18. To
summarise, section
18 revokes a person’s will when they marry or enter
a civil union. Section 19 revokes those parts of a person’s will
that make
provision to a former spouse or civil union partner when the marriage or civil
union has been formally dissolved. In Chapter
18, we note our preliminary view
that section 18 should be repealed and ask for feedback on whether section 19
needs to change.
If customary marriages are recognised separately from meeting
the requirements of a de facto relationship, there may be questions
about the
relevance and application of sections 18 and 19 to them.
- Ian
Binnie and others Entitlements to deceased people’s property in New
Zealand: Public attitudes and values – A general population survey
(Te Whare Wānanga o Ōtākou | University of Otago, research
report to the Michael and Suzanne Borrin Foundation, Dunedin,
April 2021) at
[148] and figure 13.
- Seventy-four
per cent of Māori respondents agreed or strongly agreed that the wife
should be entitled to a half share of the
home: Ian Binnie and others
Entitlements to deceased people’s property in New Zealand: Public
attitudes and values – A general population survey (Te Whare
Wānanga o Ōtākou | University of Otago, research report to the
Michael and Suzanne Borrin Foundation, Dunedin,
April 2021) at
[149].
57 Property
(Relationships) Act 1976, s 61.
QUESTIONS
|
|
Q40
|
Should Māori customary marriage be recognised in state law separately
from
|
meeting the requirements of a de facto relationship?
|
Q41
|
Do obligations sourced from tikanga exist from a deceased partner to a
surviving
|
partner in relation to property and, if so, how might they be
expressed?
|
Q42
|
Does the presumption of equal sharing of relationship property in the PRA
accord
|
with tikanga?
|
Q43
|
If not, how might tikanga respond to the division of property between
partners
|
when one has died?
|
Q44
|
Are our reform options in relation to sections 18 and 19 of the Wills Act
2007
|
problematic for Māori customary marriages?
|
FAMILY PROVISION
Whānau
obligations
- 8.39 We have
already outlined the importance of whānau for Māori. Williams J, in
extrajudicial writing, has said that “[w]ithout
whānau, being
Māori is a mere abstraction”.58 Being part of a whānau
involves rights and obligations that are sourced from whanaungatanga,
manaakitanga and aroha.59
These obligations can include financial and moral support as well as an
obligation to take responsibility for each other’s actions.60 The whānau is also
crucial for discussing and settling familial issues relating to child rearing
and succession.61 Professor Patu Hohepa
has said that “[a]ll members must ideally share
compassion
- Joseph
Williams “Lex Aotearoa: An Heroic Attempt to Map the Māori
Dimension in Modern New Zealand Law” [2013] WkoLawRw 2; (2013) 21 Waikato L Rev 1 at
23.
- Joan
Metge “Succession Law: Background Issues Relating to Tikanga Maori”
(paper prepared for Te Aka Matua o te Ture |
Law Commission, 1994) at 2–4;
Hirini Moko Mead Tikanga Māori: Living by Māori Values (rev ed,
Huia Publishers, Wellington, 2016) at 32–33; Te Aka Matua o te Ture | Law
Commission The Taking into Account of Te Ao Maori in Relation to Reform of
the Law of Succession (NZLC MP6, 1996) at 20–21; Jacinta Ruru
“Kua tutū te puehu, kia mau: Māori aspirations and family law
policy”
in Mark Henaghan and Bill Atkin (eds) Family Law Policy in New
Zealand (5th ed, LexisNexis, Wellington, 2020) 57 at 60.
- Joseph
Williams “Lex Aotearoa: An Heroic Attempt to Map the Māori
Dimension in Modern New Zealand Law” [2013] WkoLawRw 2; (2013) 21 Waikato L Rev 1 at 4;
Jacinta Ruru “Kua tutū te puehu, kia mau: Māori aspirations and
family law policy” in Mark Henaghan and
Bill Atkin (eds) Family Law
Policy in New Zealand (5th ed, LexisNexis, Wellington, 2020) 57 at 60.
- Te
Aka Matua o te Ture | Law Commission The Taking into Account of Te Ao Maori
in Relation to Reform of the Law of Succession (NZLC MP6, 1996) at
20.
(aroha), trust (pono), truthfulness (tika) with each other”.62 The whānau also acts as
a first line of defence when there is trouble with an individual or group within
a wider whānau.63
- 8.40 Williams J
in extrajudicial writing has described the whānau and the rights and
obligations of its members:64
Traditionally the whanau ...
was the centre of Māori life. It was the primary unit of close identity and
belonging, the primary
unit of social rights and obligations and, at a
practical level at least, the primary unit of economic rights and
obligations.
- 8.41 Although
all those within a whānau carry these obligations towards each other,
arguably the primary obligations of the
whānau as a whole are to the
tamariki Māori and mokopuna Māori.65
- 8.42 The
obligations that exist under the Family Protection Act 1955 (FPA) are discussed
in Chapter 4. This law reflects the idea
of a moral duty to provide for some
family members where the terms of a will or the intestacy regime do not
adequately provide for
them. Deciding who might properly claim against an estate
may be a difficult decision and we explore here how tikanga might approach
this
question.
- 8.43 In the
Succession Survey, 67 per cent of Māori interviewed agreed that, in a
scenario where a deceased left their entire
estate to charity, the
deceased’s adult child should be able to challenge the will and get a
share of the estate. The proportion
of Māori who agreed was higher than all
respondents, of which 56 per cent agreed.66 Similarly, 70 per cent of
Māori respondents thought that an adult child should be able to challenge a
will which gives the entire
estate to another adult child, compared with 62 per
cent of all respondents. 67
Sixty-five per cent of Māori who responded said that the
deceased’s children should be able to challenge a will which gives
the
estate to the deceased’s second wife, compared with of 57 per cent of all
respondents.68 These results
suggest that Māori may place more value on familial obligations when
compared with testamentary freedom than the
overall
population.
- Te
Aka Matua o te Ture | Law Commission The Taking into Account of Te Ao Maori
in Relation to Reform of the Law of Succession (NZLC MP6, 1996) at 20
(emphasis removed).
63 Jacinta
Ruru “Kua tutū te puehu, kia mau: Māori aspirations and family
law policy” in Mark Henaghan and Bill
Atkin (eds)
Family Law Policy in New Zealand (5th ed, LexisNexis, Wellington,
2020) 57 at 61.
- Joseph
Williams “Lex Aotearoa: An Heroic Attempt to Map the Māori
Dimension in Modern New Zealand Law” [2013] WkoLawRw 2; (2013) 21 Waikato L Rev 1 at
23.
- Ranginui
Walker Ka Whawhai Tonu Matou: Struggle Without End (Penguin Books,
Auckland, 1990) at 64; and The Maori Perspective Advisory Committee
Puao-Te-Ata-Tu (day break): The Report of the Ministerial Advisory Committee
on a Maori Perspective for the Department of Social Welfare
(September 1988)
at 29–30 and 74–75.
- Ian
Binnie and others Entitlements to deceased people’s property in New
Zealand: Public attitudes and values – A general population survey
(Te Whare Wānanga o Otākou | University of Otago, research report
to the Michael and Suzanne Borrin Foundation, Dunedin,
April 2021) at
[135].
- Ian
Binnie and others Entitlements to deceased people’s property in New
Zealand: Public attitudes and values – A general population survey
(Te Whare Wānanga o Otākou | University of Otago, research report
to the Michael and Suzanne Borrin Foundation, Dunedin,
April 2021) at
[142].
- Ian
Binnie and others Entitlements to deceased people’s property in New
Zealand: Public attitudes and values – A general population survey
(Te Whare Wānanga o Otākou | University of Otago, research report
to the Michael and Suzanne Borrin Foundation, Dunedin,
April 2021) at
[136].
Partners and children
- 8.44 As
we understand whanaungatanga, aroha and manaakitanga, they would ensure that a
surviving partner and any children of the relationship
are cared for by
whānau. We would like to learn more about how tikanga might promote the
transfer of ownership or the use of
property where a will or
ōhākī does not provide appropriately for the surviving partner or
children or where someone
dies intestate.
Whāngai
- 8.45 Whāngai69 is a customary Māori
practice where a child is raised by someone other than their birth parents,
usually another relative.70
Rather than being a way of dealing with children who lack parents, the
concept and practice of whāngai is firmly planted within
whanaungatanga.71 The term
“whāngai” is often associated with the Pākehā
tradition of adoption. However, whāngai does
not have the same features or
consequences as a legal adoption.72
If a Pākehā equivalent must be sought, the idea of guardianship
is closer to whāngai than adoption but is not an equivalent.73 Whāngai:74
... is a technique for
cementing ties among members of whanau and hapu located at different points in
the whanaungatanga net, and
for ensuring the maintenance of tradition between
generations; the latter, by placing young children with elders to be educated
and
raised in Māori tradition. Thus to be a whangai in tikanga Māori
is not to be abandoned – quite the opposite. It
is to be especially
selected as someone deserving of the honour. Stranger adoption was completely
unheard of and would be considered
abhorrent in a system that valued kinship
above all else. A form of banishment.
- 8.46 The origins
of whāngai are found in an account of Māui-tikitiki-a-Taranga. 75 Taranga, Māui’s
mother, miscarried Māui, her youngest child. Believing him to be
stillborn, she cut off her topknot,
wrapped him in it and cast him into the
sea. Māui became entangled in seaweed and as a result remained afloat until
he was washed
ashore and found by his grandparent, Tama-nui-ki-te-rangi, who
then raised him. Later, Māui returned to his
- The
term whāngai is also the verb “to feed”. Some hapū prefer
the term “atawhai”: see Professor
Milroy’s explanation in
Hohua – Estate of Tangi Biddle (2001) 10 Rotorua Appellate MB 43
(10 APRO 43).
- See
generally Merata Kawharu and Erica Newman “Whakapaparanga: Social
Structure, Leadership and Whāngai” in Michael
Reilly and others (eds)
Te Kōparapara: An Introduction to the Māori World (Auckland
University Press, Auckland, 2018) 48 at 59–63; Geo Graham “Whangai
Tamariki” (1948) 57 Journal of the
Polynesian Society 268; Mihiata Pirini
“The Māori Land Court: Exploring the Space between Law, Design, and
Kaupapa Māori”
(LLM Dissertation, Te Whare Wānanga o
Ōtākou | University of Otago, 2020) at 18–21; Michael Sharp
“Māori
Estates: Wills” in Wills and Succession (online
looseleaf ed, LexisNexis) at [16.12]; and Joseph Williams “Lex Aotearoa:
An Heroic Attempt to Map the Māori Dimension
in Modern New Zealand
Law” [2013] WkoLawRw 2; (2013) 21 Waikato L Rev 1 at 5.
- Joseph
Williams “Lex Aotearoa: An Heroic Attempt to Map the Māori
Dimension in Modern New Zealand Law” [2013] WkoLawRw 2; (2013) 21 Waikato L Rev 1 at
5.
72 Te Aka Matua o te Ture |
Law Commission Adoption and Its Alternatives: A Different Approach and a New
Framework
(NZLC R65, 2000) at 73.
- Department
of Social Welfare Review of Adoption Law: Adoption by Maori – A
Consultation Paper (Social Policy Agency, Department of Social Welfare,
Wellington, 1993) at 7 and 10.
- Joseph
Williams “Lex Aotearoa: An Heroic Attempt to Map the Māori
Dimension in Modern New Zealand Law” [2013] WkoLawRw 2; (2013) 21 Waikato L Rev 1 at
5.
- Merata
Kawharu and Erica Newman “Whakapaparanga: Social Structure, Leadership and
Whāngai” in Michael Reilly and
others (eds) Te Kōparapara: An
Introduction to the Māori World (Auckland University Press, Auckland,
2018) 48 at 59– 60.
biological parents and identified himself by reciting his whakapapa to his
family, who then welcomed and accepted him and continued
to raise and nurture
him.
- 8.47 The right
of whāngai to succeed according to tikanga varies amongst whānau,
hapū and iwi.76
The FPA and our preliminary views on reform
- 8.48 The
FPA contemplates claims by family members of the deceased to seek further
provision from an estate if adequate provision
has not been made for the family
member’s “proper maintenance and support”.77 The majority of FPA claims
are made by independent adults, not all of whom are in any financial need. This
is possible because the
courts have interpreted the word “support”
to include a moral obligation to provide for certain family members in the
will
to recognise their familial relationship.78 Whāngai are not
considered “children of the deceased” under the FPA.79
- 8.49 Several
cases have considered the application of the FPA where elements of tikanga are
at play.80 The cases largely
demonstrate the difficulty of applying tikanga concepts within the scope of
family protection legislation based
upon non-Māori notions of family and
familial obligations.81
- 8.50 We ask in
Chapter 4 whether only the partner and children under a prescribed age should be
able to seek family provision in such
circumstances. An alternative approach
would include dependent adult disabled children. We also ask whether there
continues to be
value in recognition awards for children of all ages to
acknowledge the parent-child relationship and that they belong to the family.
Our preliminary view is that family provision should be limited to partners and
children under a prescribed age.82
We also
- See
for example Hohua – Estate of Tangi Biddle (2001) 10 Rotorua
Appellate MB 43 (10 APRO 43); Pomare – Estate of Peter Here Pomare
(2015) 103 Taitokerau MB 95 (103 TTK 95); and Retemeyer v Loloa –
Estate of Tahuaka Waipouri (2016) 129 Taitokerau MB 288 (129 TTK
288).
77 Family Protection Act
1955, s 4(1).
78 Williams v Aucutt [2000] NZCA 289; [2000] 2
NZLR 479 (CA) at [52].
- Family
Protection Act 1955, s 3; and Keelan v Peach [2002] NZCA 296; [2003] 1 NZLR 589 at
[43]. However, the most recent amendments to the TTWMA include an amendment
that te Kooti Whenua Māori | the Māori Land Court
may determine
whether someone is a whāngai for the purposes of a claim under the FPA that
relates to Māori freehold
land: see Te Ture Whenua Maori Act 1993, s
115.
- See
for example Re Stubbing [1990] 1 NZLR 428 (HC); Re Ham [1990] NZCA 32; (1990) 6
FRNZ 158 (CA); van Selm v van Selm [2015] NZFC 3242, [2015] NZFLR 693
(this case concerned general land owned by Māori that had been changed
under the 1967 amendments to the Maori Affairs Act 1953);
and Sainsbury v
Graham [2008] NZHC 1873; [2009] NZFLR 173 (HC).
- For
example, in van Selm v van Selm [2015] NZFC 3242, [2015] NZFLR 693, the
deceased gave one of her three children a farm in her will. The other two
children claimed further provision from the estate.
The child that inherited the
farm argued that the case should be determined according to tikanga Māori
rather than current social
attitudes. In particular, he argued that the Court
should respect the deceased’s wishes that the farm should stay in the
whānau.
He also noted that the origins of the land were as Māori land.
The Court held that the three children did not operate as a whānau
and
tikanga Māori did not seem particularly important in the
family. The Court held (at [152]–[156]) that any considerations
of tikanga
Māori in this particular case did not outweigh the deceased’s moral
duty to each of her children.
- In
the Succession Survey, 80 per cent of all respondents agreed that it is okay to
cut family members out of a will, and similar results
applied for Māori
respondents: Ian Binnie and others Entitlements to deceased people’s
property in New Zealand: Public attitudes and values – A general
population survey (Te Whare Wānanga o Ōtākou | University of
Otago, research report to the Michael and Suzanne Borrin Foundation, Dunedin,
April 2021) at [96] and figure 1. However, 60 per cent of all respondents
thought that surviving partners and children (of any age)
should be able to
challenge a will if they are not included in it: at figure 4. Māori
respondents (67 per cent) were more likely
than non-
express a preliminary view that the definition of “child” within the
proposed new Act should be broadly defined to
include “accepted
children”, with the intention that whāngai could fall under this and
be eligible to make a claim.
Family provision and tikanga
- 8.51 The
FPA may be seen as a limit on testamentary freedom in order to recognise a
deceased’s obligations to their family.83 We outline above some
possible tensions Māori may face balancing individual rights and communal
obligations. These tensions are
especially relevant in a family provision
context.
- 8.52 Whānau
Māori and non-Māori notions of family share some common values. When
both are fully functional, the connections
one shares with one’s
whanaunga (relatives) matter to the individual and to the collective. An
estranged family member
hurts the individual, the family and the whānau.
When a family or whānau member is in trouble, the whānau and
family
may rally around them to provide support. Compassion, trust and honesty are
valued amongst family members and whānau.84 The actions of an individual
member can impact on and reflect on others in a family or whānau. In some
cases, a family or whānau
may choose to bear responsibility for the actions
of a member.
- 8.53 The policy
behind the FPA itself may reflect ideas that are recognisable through a tikanga
lens. Awards are frequently made on
a recognition basis. That is, to
recognise:85
A child’s
path through life is supported not simply by financial provision to meet
economic needs and contingencies but also
by recognition of belonging to the
family and of having been an important part of the overall life of the
deceased.
- 8.54 The law has
recognised that at least part of the justification for having a legal remedy
against disentitlement is the family
connection with the deceased. However,
Professor Ruru’s articulation of the dual views of whānau must be
considered here
as the descent view may take precedence over the extended view
when considering legal entitlements to property.86 This would mean more or less
weight may be placed on those who have whakapapa connections to the deceased
depending on the context.
Consideration must also be given to the mana of the
deceased. A well-respected rangatira’s wishes may be less likely to be
challenged than others with less mana.
- 8.55 The
concepts of whanaungatanga, manaakitanga and aroha may inform the legal right to
seek provision from a relative’s estate.
The current state law broadly
recognises protection, recognition and reward/compensation as bases for a family
provision claim. Tikanga
may help inform these bases or recognise different
bases altogether for providing for family members. Tikanga may also have
something
to say about which family members should be provided for in this
way.
Māori respondents to agree that an adult child should be
allowed to challenge a will which leaves the estate to charity: at [135].
- Rosalind
Atherton “The Concept of Moral Duty in the Law of Family Provision –
A Gloss or Critical Understanding?”
(1999) 5 Austl J Legal Hist 5 at
22–25. However, the FPA also applies on intestacy.
- Te
Aka Matua o te Ture | Law Commission The Taking into Account of Te Ao Maori
in Relation to Reform of the Law of Succession (NZLC MP6, 1996) at
20.
85 Williams v Aucutt
[2000] NZCA 289; [2000] 2 NZLR 479 (CA) at [52].
86 Jacinta Ruru “Kua tutū te
puehu, kia mau: Māori aspirations and family law policy” in Mark
Henaghan and Bill
Atkin (eds)
Family Law Policy in New Zealand (5th ed, LexisNexis, Wellington,
2020) 57 at 59–60.
QUESTIONS
|
|
Q45
|
What does tikanga have to say about the rights of whānau members to
challenge
|
a deceased’s testamentary wishes?
|
Q46
|
Are our preliminary views on family provision (expressed in Chapter 4)
consistent
|
with tikanga? If so, what factors are relevant in determining the outcome
of a family provision claim? If not, what would an approach
to family
provision based on tikanga look like?
|
Q47
|
How should whāngai be treated in this context?
|
|
CONTRIBUTION CLAIMS
Reciprocity,
balance, and utu
- 8.56 Utu is
concerned with “the maintenance of relationships and balance within
Māori society”.87
Life is kept in balance by the principle of utu, which operates in
relation to individuals, groups and ancestors.88 An understanding of utu can
only be achieved by placing it within the context of mana and tapu, as utu
governs relationships where
a breach of tapu or an increase or decrease in mana
has occurred.89
- 8.57 Utu is not
about trusting the receiver’s goodwill or determination to return an
action in kind. In te ao Māori,
the consequences are much more real than
that.90 Professor Hohepa
describes life as being in a careful balance of tika, pono and aroha, and
any deviation from these things
requires utu or reciprocal payment.91 One kaumātua has simply
said, “Reciprocity is how we survive”.92
- 8.58 One
Māori historical account uses the concept of utu to explain why the
elements sometimes rage against the land and the
sea. When the children of
Ranginui and
- Tāhū
o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A
Glimpse into the Māori World – Māori Perspectives on Justice
(March 2001) at 67.
88 Te
Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal
Muriwhenua Land Report (Wai 45, 1997) at 23.
- Tāhū
o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A
Glimpse into the Māori World – Māori Perspectives on Justice
(March 2001) at 68.
- ET
Durie “Will the Settlers Settle? Cultural Conciliation and Law”
[1996] OtaLawRw 1; (1996) 8 Otago LR 449 at 455–456; Tāhū o te Ture | Ministry of
Justice He Hīnātore ki te Ao Māori: A Glimpse into the
Māori World – Māori Perspectives on Justice (March 2001) at
68.
- Te
Aka Matua o te Ture | Law Commission The Taking into Account of Te Ao Maori
in Relation to Reform of the Law of Succession (NZLC MP6, 1996) at 19.
- Tāhū
o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A
Glimpse into the Māori World – Māori Perspectives on Justice
(March 2001) at 68.
Papatūānuku agreed they should separate their parents to end te
pō (the night, darkness, ignorance), one sibling,
Tāwhirimatea,
disagreed with the idea. When Tāne succeeded in separating his parents,
Tāwhirimatea sought utu against
his siblings by using his power over
the elements to attack them. This is why the winds often rage against the land
and the
ocean.
Take–utu–ea
- 8.59 As
well as being a stand-alone principle, utu can sit within the
take–utu–ea framework.93
This is a framework for assessing breaches of tikanga and what the appropriate
utu is to reach a state of ea, or resolution. The
breach of tikanga becomes the
take (cause), which upsets the natural balance of things and requires action to
be taken. Both parties
usually have to agree that there is a take. The
appropriate response is the utu, which is done to reach a resolution that
satisfies
all parties. The state of resolution at the end of the process is
ea.
Contributions and our preliminary views on reform
- 8.60 In
Chapter 5, we outline the various claims a person may make against an estate
based upon contributions they have made to the
deceased or their estate. These
are all concerned with situations where the court may order a transfer of
property or money from
the estate to someone based upon contributions they have
made. We point out that, with the increasing life expectancy of New Zealanders,
people of older age may increasingly rely on informal care arrangements and
contribution claims may become more common.
- 8.61 In Chapter
5, we also set out our preliminary view for reform, which is to amalgamate these
various claims into a single statutory
cause of action. At its core, the
proposed statutory cause of action would allow the court to order compensation
in return for benefits
someone has provided to a deceased or their estate where
the benefits were not provided as a gift or pursuant to a contractual, legal
or
equitable obligation.
Contribution claims and tikanga
- 8.62 At
the outset, it is important to acknowledge that Māori ideas of reciprocity,
balance and utu are about the maintenance
of relationships and governing
people’s behaviour towards each other.94 The various claims we outline
in Chapter 5 are concerned with the appropriate allocation of individual
property rights, and most have
their roots in contract. They therefore serve
very different purposes and are born from different societal and cultural
roots.
- 8.63 Nevertheless,
the concepts of utu, balance and reciprocity may help shape the appropriate
legal response to contributions someone
may make to a person who has since died
or their estate. The current state law is focused on determining when a
contributor ought
to receive something in return for the contributions they have
made. Arguably, there is little focus on the relationships between
the
contributor and the deceased’s whanaunga (of which the contributor may be
one). It may be more
93 Hirini Moko Mead
Tikanga Māori: Living by Māori Values (rev ed, Huia Publishers,
Wellington, 2016) at 31.
- Tāhū
o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A
Glimpse into the Māori World – Māori Perspectives on Justice
(March 2001) at 67–68.
appropriate to ask, for example, what needs to be done in order to manage and
preserve the relationships between the affected parties.
Where contributions
have been made to the deceased that affect their mana or the mana of their
whānau, it may be appropriate
for the deceased’s whānau or
the estate to respond and ensure that a state of ea is reached between the
parties.
QUESTIONS
A response based in reciprocity and utu may be more appropriate where the
contributor and the deceased shared a close relationship,
where there is the
potential for family or whānau members to be affected by the outcome or
where obligations arising from manaakitanga,
aroha or whanaungatanga are
involved. A law focused on the appropriate allocation of property rights may be
more appropriate where
the parties are not concerned with maintaining a
relationship. However, the two approaches need not be mutually exclusive, and
the
value in each approach may depend on the overall context of any
situation.
|
|
Q48
|
What role might the concepts of utu play in understanding how contributions
to a
|
deceased or their estate should be treated?
|
Q49
|
Are there other tikanga concepts that might assist?
|
|
Q50
|
How might tikanga respond to a situation where someone has
contributed
|
significantly to someone who has since died or to their estate?
|
Q51
|
Is our approach to contribution claims (as set out in Chapter 5) consistent
with
|
tikanga?
|
Part Three
Making and Resolving Claims
CHAPTER 9
Awards,
priorities and anti- avoidance
IN THIS CHAPTER, WE CONSIDER:
- the property
from which a court can make awards when someone claims against an estate;
- the respective
priority of awards from an estate;
- the powers the
court has to make awards from property outside an estate (anti- avoidance
mechanisms); and
- issues with the
current law and proposals for reform.
THE CURRENT LAW
- 9.1 The
terms of a will determine the distribution of the will-maker’s estate.
Where there is no will, the intestacy regime
in the Administration Act 1969
governs how the deceased’s estate is to be distributed.
- 9.2 A court may
make awards under the Family Protection Act 1955 (FPA) and Law Reform
(Testamentary Promises) Act 1949 (TPA) from
the property of the deceased’s
estate.1 Claims under the FPA are made
from the net estate after creditors’ claims have been satisfied,2 while claims under the TPA can
be made from the gross estate.3
- Family
Protection Act 1955, s 4 (for the purposes of the Act, an estate is deemed to
include all property that is subject of a donation
mortis causa); and Law Reform
(Testamentary Promises) Act 1949, s 3(5).
- Bill
Patterson Law of Family Protection and Testamentary Promises (4th ed,
LexisNexis, 2013) at 211; and McCormack v Foley [1983] NZLR 57 (CA) at
66.
- Law
Reform (Testamentary Promises) Act 1949, s 3(5). Case law has confirmed,
however, that the courts will not interfere with the
rights of secured creditors
to the property of an estate when making TPA awards: McCormack v Foley
[1983] NZLR 57 (CA) at 64.
- 9.3 A surviving
partner’s entitlements under the Property (Relationships) Act 1976 (PRA)
are limited to the relationship property
of the estate.4 The PRA provides that the
rights of creditors generally continue as if the PRA had not been enacted,5 and each partner has the
right to deal with their property before the court orders a relationship
property division.6 The
exceptions to this general rule include a partner’s right to lodge a
notice of claim over land in which they claim an interest
under the PRA,7 and a partner’s
protected interest in the family home which takes priority over the other
partner’s unsecured creditors.8
- 9.4 Aside from
creditors’ claims, PRA claims on an estate take priority over FPA claims
and TPA claims.9
Property
may fall outside an estate
- 9.5 It is
possible, however, that the property the deceased owned during their life will
not fall into their estate. Property that
may fall outside the estate
includes:
(a) property the deceased has gifted before they died,
such as transferring their property to be held on trust;
(b) joint tenancy assets that pass by survivorship, such as a home that is
jointly owned with a partner;
(c) a bank account or insurance policy for which the deceased has nominated a
third- party beneficiary to receive property when they
die;
(d) property that is the subject of a binding contract in which the deceased
agreed to provide that property to the other party under
their will;10 and
(e) powers of appointment or powers to control a trust that have not been
exercised by the deceased during their lifetime.11
- 9.6 Situations
may arise when, due to the property falling outside the estate, the estate
contains insufficient property to satisfy
claims against it. The court has
limited powers to bring the property into the estate in order to meet claims
against the estate.
4 Property (Relationships)
Act 1976, s 94(2).
5 Property (Relationships) Act 1976, s
20A.
6 Property (Relationships) Act 1976, s
19.
7 Property (Relationships) Act 1976, s
42. A notice lodged under s 42 has the effect of a caveat.
8 Property (Relationships) Act 1976, s
20B.
9 Property (Relationships) Act 1976, ss
58, 60(6) and 78(1)(c).
- The
current position is that the court has no jurisdiction to interfere with parts
of a will that implement such a contract: see Breuer v Wright [1982] 2
NZLR 77 (CA).
- See
Re Kensington (Deceased) [1949] NZGazLawRp 22; [1949] NZLR 382 (CA). See also Clayton v
Clayton [Vaughan Road Property Trust] [2016] NZSC 29, [2016] 1 NZLR 551,
where te Kōti Mana Nui | the Supreme Court held Mr Clayton’s
collection of powers under the trust deed amounted to
property.
Anti-avoidance mechanisms under the current law
- 9.7 The
PRA contains some “clawback” mechanisms. The court can make an order
to recover property when it was disposed
of with intent to defeat a
partner’s rights. 12
When a disposition of property to a trust or company has a defeating
effect but there has been no intention to defeat, the court has
limited powers
to provide compensation to the affected partner.13
- 9.8 The PRA
classifies property passing by survivorship to the surviving partner according
to the status it would have had if the
deceased had not died, meaning joint
tenancy assets owned by the couple do not escape division. 14 However, there is some
uncertainty whether a court can recover property that has passed from the
deceased partner to a third party
through survivorship.15
- 9.9 The FPA and
the TPA contain no mechanisms through which the court can award property outside
the estate. However, there are ways
claimants can access that property. In
particular, section 88(2) of the PRA allows the personal representatives, with
the leave of
the court, to apply for a relationship property division on behalf
of the estate. The purpose of division initiated by the personal
representatives
is usually to recover relationship property that was held as joint tenants with
the deceased’s surviving partner
that would otherwise pass to them through
survivorship.16 In most
cases, division is sought to increase the size of the estate to satisfy FPA
claims,17 although leave has
also been sought where there is insufficient property to meet gifts under the
will.18 The estate’s
rights to seek a relationship property division therefore operate as a clawback
mechanism.
- 9.10 In recent
cases, adult claimants have argued that their deceased parent owed them
fiduciary duties to protect their economic
interests, particularly by the
deceased parent providing for the children from their estate.19 This is relevant because a
court may remedy a breach of fiduciary duty by recognising a constructive trust
in favour of a claimant.
A fiduciary may pass property to a third party with the
effect that the property would not form part of their estate when they die.
If
they passed property to a third party when the third party knew the disposition
breached the fiduciary’s duties, a court
may find the
third
12 Property
(Relationships) Act 1976, s 44.
13 Property (Relationships) Act 1976,
ss 44C and 44F.
14 Property (Relationships) Act 1976, s
83.
- In
Hau v Hau [2018] NZHC 881, [2018] NZFLR 464 the Court noted that the
couple’s family home was relationship property even though it had passed
to the deceased’s brother
through survivorship. The Court noted, at [50],
there was no express power under the Property (Relationships) Act 1976 for the
Court
to recover the property, but it held Parliament could not have intended
the Act’s property regime to be automatically excluded
by the operation of
survivorship.
16 See Nicola
Peart (ed) Family Property (online looseleaf ed, Thomson Reuters) at
[PR88.05].
17 See for example Public Trust v W
[2004] NZCA 327; [2005] 2 NZLR 696 (CA).
- See
for example Public Trust v Relph [2008] NZHC 1944; [2009] 2 NZLR 819 (HC); Crotty v
Williams FC Hamilton FAM-2002-19-1082, 29 August 2005. Leave has also been
sought when the surviving partner killed the deceased and the estate
has sought
to prevent the surviving partner from benefiting from their crime: H v T
HC Christchurch CIV-2006-409-2615, 5 June 2007. The Succession (Homicide)
Act 2007 now addresses this
situation.
19 A v D
[2019] NZHC 992, [2019] NZFLR 105; and Rule v Simpson [2017] NZHC
2154.
party holds the property subject to the constructive trust. Consequently,
claimants can obtain priority to the property subject to
the constructive trust
whether it falls into the estate or not. To date, the courts have refused to
strike out these claims, instead
ordering the claim should be determined through
trial.
RECOMMENDATIONS IN THE PRA REVIEW
- 9.11 In
the PRA review, we made several recommendations regarding property and anti-
avoidance, including the following:
(a) The notice of claim
procedure should be expanded to enable a partner to lodge a notice of claim on
the title of land held on trust
against which the partner claims under the
PRA.20
(b) The court’s power to restrain dispositions of property made with
intent to defeat a person’s rights (section 43) should
be replaced by a
broad power for the court to make interim restraining orders consistent with the
court’s interlocutory injunction
jurisdiction.21
(c) Sections 44 (empowering the court to recover property disposed of with
the intention to defeat a person’s rights under the
PRA) and 44F
(empowering the court to order compensation in respect of dispositions of
property to a qualifying company with the
effect of defeating rights under the
PRA) should continue unchanged.22
(d) Section 44C, applying to dispositions of property to trusts, should be
replaced with a new provision that gives the court
powers to grant
relief in respect of trusts where it is “just” and:23
(i) either or both partners disposed of property to a trust when the
relationship was in reasonable contemplation or since the
relationship began and
that disposition has defeated the rights of either or both partners;
(ii) trust property has been sustained by the application of relationship
property or the actions of either or both partners; or
(iii) any increase in value of the trust property or benefits derived from
the trust property is attributable to the application
of relationship property
or the actions of either or both partners.
- Te
Aka Matua o te Ture | Law Commission Review of the Property (Relationships)
Act 1976 | Te Arotake i te Property (Relationships) Act 1976 (NZLC
R143, 2019) at R65 and [11.107].
- Te
Aka Matua o te Ture | Law Commission Review of the Property (Relationships)
Act 1976 | Te Arotake i te Property (Relationships) Act 1976 (NZLC
R143, 2019) at R92 and [15.67]–[15.70].
- Te
Aka Matua o te Ture | Law Commission Review of the Property (Relationships)
Act 1976 | Te Arotake i te Property (Relationships) Act 1976 (NZLC
R143, 2019) at [11.102]–[11.106].
- Te
Aka Matua o te Ture | Law Commission Review of the Property (Relationships)
Act 1976 | Te Arotake i te Property (Relationships) Act 1976 (NZLC
R143, 2019) at R58–R63 and [11.65]–[11.101].
ISSUES
Restricting
entitlements and claims to estate property may limit their effectiveness
- 9.12 The PRA,
FPA and TPA reflect policy choices as to whom the deceased owed duties to
provide for on their death. However, the effectiveness
of these entitlements and
claims may be undermined if the deceased avoids those duties by taking steps to
ensure property does not
fall into their estate and instead passes to recipients
of their choosing through other means.
- 9.13 There is no
data available that directly indicates the extent of avoidance behaviour.
However, there are some reasons to believe
it is not
uncommon:
(a) Cases have come before the courts concerning estates
that hold insufficient property to meet claims because the deceased’s
property passed to others without falling into the estate.24
(b) Data from Toitū te Whenua | Land Information New Zealand shows that,
in recent years, the number of transmissions of interests
in land by
survivorship is roughly equal to the number of transmissions to an executor or
administrator (excluding interests in Māori
land). This indicates it is
common for the deceased’s interests in land to pass by survivorship rather
than fall into the estate.25
(c) Responses to the survey we issued to lawyers in April 2020 and anecdotal
feedback we have received indicate avoidance behaviour
occurs.
The current clawback mechanisms are complex and
burdensome
- 9.14 The
mechanism in section 88(2) of the PRA is a multi-step process that can be
convoluted and cause delay. Personal representatives
must obtain leave and issue
proceedings. If the personal representatives are unwilling to seek leave, a
prospective FPA claimant
might first apply to have the court replace the
personal representatives.26
If the personal representatives do seek leave and they are successful, the
process of dividing relationship property can be long
and complex. A full
division of relationship property can be a disproportionate response when only a
modest amount of property falling
outside an estate is needed to satisfy
obligations to beneficiaries or claimants. It can therefore frustrate the
deceased’s
testamentary intentions and cause unnecessary costs to the
estate. Personal representatives may find themselves in difficult situations
having to disregard the will and seek division on behalf of
claimants.
24 See for example
Public Trust v W [2004] NZCA 327; [2005] 2 NZLR 696 (CA); A v D [2019] NZHC 992,
[2019] NZFLR 105; and Hau v Hau
[2018] NZHC 881, [2018] NZFLR 464.
- Email
from Toitū Te Whenua | Land Information New Zealand to Te Aka Matua o te
Ture | Law Commission regarding data on land transfers
by survivorship (29
October 2019). Transmission instruments are lodged with Toitū Te
Whenua
| Land Information New Zealand to transfer property to an
executor, administrator, or survivor.
- In
a costs decision, te Kōti Matua | the High Court held it would be open for
a Family Protection Act claimant to seek leave
to divide relationship property
as a derivative action if the personal representative neglected their duty of
even- handedness to
the claimant by failing to seek leave themselves under s
88(2) of the Property (Relationships) Act 1976: Nawisielski v Nawisielski
[2014] NZHC 2039, [2014] NZFLR 973.
- 9.15 The recent
cases concerning fiduciary duties owed to children to provide for them on death
have left the law uncertain. In A v D, the Court applied conventional
principles of fiduciary law in the context of an abusive parent-child
relationship and knowing receipt
by trustees.27 The development of this area
of law is likely to be quite specific and fall outside our review. Rule v
Simpson, on the other hand, is not so limited and, if successful at trial,
could establish much broader fiduciary duties on parents to provide
for their
children on death.28
PROPOSALS FOR REFORM
- 9.16 Our
proposals for reform start with our preliminary view as to what property should
be available in the first instance to meet
each entitlement and claim under the
new Act. We then address how each should rank in priority to each other. Lastly,
we consider
what anti-avoidance mechanisms could be introduced.
Property claimable
Relationship property claims
- 9.17 We
have expressed a preliminary view in Chapter 3 that a “top-up”
approach is appropriate when a partner elects to
take their relationship
property entitlements on the death of their partner.29 We propose that a court
should source any property needed for the “top-up” from relationship
property assets of the estate
because this is the property attributable to the
relationship. The court should also, however, be able to order that the award be
met from the whole or part of the estate. A court could make awards from the
property it recovers through its clawback powers depending
on what
anti-avoidance mechanisms are included in the new Act (see discussion on
anti-avoidance mechanisms below).
Family provision claims
- 9.18 We
propose that a court should be able to make family provision awards rateably
against the whole estate or to order that family
provision awards be met from
only part of the estate. This is the position under the current law. It gives
the court a high degree
of flexibility to make awards from property in a way
that is least likely to disrupt the other beneficiaries’ interests and
the
deceased’s testamentary intentions (where there is a will).
- 9.19 A court
should be able to make awards from the property it recovers through its clawback
powers depending on what anti-avoidance
mechanisms are included in the new
Act.
Contribution claims
- 9.20 Because
the proposed statutory cause of action for contribution claims would encompass
the types of property, work and services
that might found a claim for a
constructive trust
27 A v D [2019]
NZHC 992, [2019] NZFLR 105.
28 Rule v Simpson [2017] NZHC
2154.
- If
a partner elects to take their relationship property entitlements, they will
receive their gifts under the will plus a “top-
up” from the
relationship property up to the value of their relationship property
entitlements.
or quantum meruit, it is appropriate that the court has powers to make monetary
awards and awards in relation to particular items
of property.
- 9.21 Like family
provision claims, we propose that a court should have power to make monetary
awards rateably against the whole estate,
but with flexibility to order that the
award be met from only part of the estate. In addition, the court should be able
to order
a transfer of specific property in appropriate circumstances. For
example, it may be that the claimant relied on a promise of specific
property
when performing services to the deceased or the claimant may have contributed to
the acquisition, maintenance or improvement
of specific property that would
otherwise give rise to a constructive trust claim.
- 9.22 A court
should be able to make awards from the property it recovers through its clawback
powers depending on what anti-avoidance
mechanisms are included in the new
Act.
Intestacy
- 9.23 We
propose that entitlements on an intestacy should not take into account
dispositions of property the deceased made to
the beneficiaries during their
lifetime. Nor should entitlements be affected by other property of the deceased
that falls outside
the estate. This is for two reasons. First, as intestate
estates are often of modest value, it is important to minimise administration
costs. The inquiries administrators should be required to make should be kept to
a minimum. Second, as we propose in Chapter 6, the
intestacy regime should
replicate what most intestate people would have done had they made a will.
Where the deceased has structured
their property affairs in a way so that
certain individuals receive their property when they die, albeit not through
their estate,
the intestacy regime should respect those structures.
- 9.24 On this
basis, there is no need under the intestacy regime to look beyond the property
of the estate to meet entitlements. Claimants
should, however, still be able to
bring relationship property, family provision or contribution claims against an
intestate estate
through which property falling outside the estate could be
recovered depending on what anti-avoidance mechanisms are included in
the new
Act.
Priorities
Relationship between creditors’ rights and
entitlements and claims against the estate under the new Act
- 9.25 We
propose that creditors’ rights should generally take priority over all
claims under the new Act. This approach will
extend the rule in the PRA that
creditors’ rights are generally unaffected by the PRA. It is also
consistent with the current
position that FPA awards are made from the net
estate.
- 9.26 We propose
two exceptions to this general rule. First, when making contribution awards,
the court should have discretion to
order that specific property of the estate
be awarded to meet contribution claims in priority to unsecured creditors
when:
(a) the deceased promised to transfer that property to the
claimant; or
(b) the property has been provided or improved by the claimant or it is the
proceeds of sale or exchange of that property, or is property
acquired with the
proceeds of sale or exchange.
- 9.27 Second, in
the PRA review, we recommended the Government should undertake further policy
work in relation to the provision of
a protected interest in the family home.30 If the Government concludes
that a partner should continue to have a protected interest in certain property
that takes priority over
unsecured creditors, we propose it should be available
to a surviving partner under the new Act.
Priorities among the different claims in the new
Act
- 9.28 If
an estate has insufficient property to fully satisfy relationship property
awards, family provision awards and contribution
awards, we propose that the
property of the estate should be applied to satisfy claims in the following
order of priority:
(a) To meet contribution awards.
(b) To meet relationship property awards.
(c) To meet family provision awards.
- 9.29 We consider
contribution awards should take priority because a contribution award is
designed to remedy the unremunerated benefits
the claimant has provided to the
deceased or the estate. The estate may be advantaged by having its property
preserved or enhanced
or from the savings the deceased made by not paying for
the services the contributor provided. Denying the contributor priority may
result in a windfall to other claimants. Lastly, contribution claims are
intended to replace remedies through which the contributor
may have been able to
claim priority through a constructive trust. Giving priority to contribution
claimants will be consistent with
the rights they may have had under the current
law.
- 9.30 Relationship
property awards should rank higher than family provision awards. That is for
several reasons:
(a) Relationship property awards recognise the
entitlement the surviving partner has in the couple’s relationship
property
because of their contributions to the relationship. This entitlement
should therefore qualify what property can legitimately be called
the
“deceased’s property” from which family provision awards can
be made.
(b) After a relationship property division, half the relationship property
held in the estate should generally remain. Family provision
claims can be met
from this property.
(c) If the surviving partner is the parent of the deceased’s children,
the law imposes obligations on that partner to maintain
the children while they
are young. Giving the surviving partner priority is unlikely to result in the
children going without provision.
If the surviving partner is not the
children’s parent, the children could potentially look to their other
parent or parents
for maintenance in addition to whatever family provision
awards can be made from the remaining estate.
- Te
Aka Matua o te Ture | Law Commission Review of the Property (Relationships)
Act 1976 | Te Arotake i te Property (Relationships) Act 1976 (NZLC
R143, 2019) at [18.13]–[18.17]. We recognised the difficulties of the
protected interest because it is available only
to homeowners and it is
questionable whether the extent of the interest provides effective
protection.
(d) PRA awards currently rank higher than FPA awards.31 We are not aware of criticism
of this approach.
- 9.31 If there
are multiple contribution claims, those claims should rank equally with each
other. If there are multiple family
provision claims, our preliminary view is
that it is best to state no order of priority. Rather, the court would need
to make
an assessment on the facts as to each claimant’s particular need
for family provision from the estate, including whether
a child’s
need for family provision could be adequately addressed by provision to the
surviving partner.
Anti-avoidance mechanisms
- 9.32 Anti-avoidance
mechanisms must balance competing policy objectives:
(a) respecting
the deceased’s right to structure their property affairs as they wish and
third parties’ rights to rely
on those structures; and
(b) ensuring sufficient property is available to meet entitlements and
claims.
- 9.33 The extent
of the anti-avoidance provisions in the new Act should reflect a decision as to
which policy consideration is considered
to be of greater importance. It is
helpful to consider the different approaches taken by jurisdictions that
Aotearoa New Zealand
often compares itself with.
- 9.34 In
Australia, the Uniform Succession Laws project32 recommended all states and
territories adopt a “notional estate” approach whereby certain
property falling outside the
estate is deemed to be part of the estate for the
purpose of meeting family provision claims.33 However, to date, New South Wales is the
only Australian state or territory that has adopted this recommendation.34 Several other state law
reform bodies have rejected it on the basis that there is insufficient evidence
of a problem and a notional
estate approach is a significant incursion into
property rights.35
- 9.35 In Canada,
a small minority of jurisdictions have adopted a notional estate-style regime.36
Most jurisdictions have limited or no mechanisms to claim against property
outside an
- Property
(Relationships) Act 1976, s 78. But see Hare v Hare [2019] NZHC 2801, in
which the Court held that a charging order the Commissioner of Inland Revenue
had obtained in respect of a bankrupt’s unpaid
child support over the
bankrupt’s family home constituted security for a debt and thus took
priority over the bankrupt’s
wife’s protected interest in the
home.
- The
Uniform Succession Laws project was initiated by the Standing Committee of
Attorneys-General in Australia in 1991. Its brief was
to review the laws in
Australian jurisdictions relating to succession and to recommend model national
uniform laws. The Queensland
Law Reform Commission took responsibility for
coordinating the project: National Committee for Uniform Succession Laws
Report to the Standing Committee of Attorneys General on Family Provision
(QLRC MP28, 1997) at i.
- National
Committee for Uniform Succession Laws Report to the Standing Committee of
Attorneys General on Family Provision (QLRC MP28, 1997) at 76–87 and
93–94.
34 Succession Act
2006 (NSW), pt 3.3.
- Victorian
Law Reform Commission Succession Laws (Report, 2013); South Australian
Law Reform Institute ‘Distinguishing between the Deserving and the
Undeserving’: Family Provision Laws in South Australia (Report 9,
2017); and Tasmania Law Reform Institute Should Tasmania Introduce Notional
Estate Laws? (Final Report No 27,
2019).
36 Succession Law
Reform Act RSO 1990 c S.26, pt V; and Dependants Relief Act RSY 2002 c 56.
estate. England and Wales have a fairly extensive notional estate-style
regime,37 but the Scottish
Law Commission strongly recommended against it.38
- 9.36 In light of
the different approaches the new Act could adopt, we present three possible
options for reform.39
Option One: maintain the status quo
- 9.37 This
option would continue the current position by restating the current law within
the new Act. Awards would be limited to the
property in the estate, although
relationship property claimants could take advantage of the limited
anti-avoidance mechanisms currently
within the PRA noted above. Under this
option, the personal representatives’ rights to seek a division of
relationship property
would continue for the purpose of accessing relationship
property assets from the surviving partner.
- 9.38 If this
option is preferred, there is a question regarding what rights contribution
claimants should have to property outside
the estate. Under the current law,
individuals claiming constructive trusts could claim against specific assets
outside the estate.
If contribution claims codify the law and prohibit claims
except from those arising under the new Act, it may be that claims against
specific assets not in the estate would have to exist outside the new Act,
resulting in only partial codification.
Option Two: a limited clawback mechanism
- 9.39 Option
Two is a limited clawback mechanism that would target dispositions of
property the deceased made before their death
and joint tenancy property
passing by survivorship. It would apply where:
(a) the deceased
made the disposition with intent to defeat an entitlement or claim;
(b) the deceased made a disposition of property within five years of their
death that had the effect of defeating an entitlement or
claim;40 or
(c) the deceased owned property as joint tenants with another and the
deceased’s interest has passed by survivorship on their
death.
- 9.40 Third-party
recipients from whom the property is sought would need to be joined as
parties to the proceeding.41
The court should not make a clawback order if the recipient of the
property received it in good faith and provided fully adequate
consideration.
The
37 Inheritance (Provision
for Family and Dependants) Act 1975 (UK), ss 8–13.
38 Scottish Law Commission Report on
Succession (Scot Law Com No 215, 2009) at [1.20].
- Based
on our recommendations in the PRA review, these options all assume that s 182 of
the Family Proceedings Act 1980 will not be
in force. They also assume that, at
a minimum, a partner should still be entitled to all the anti-avoidance
mechanisms currently
contained in the PRA.
- The
five-year time limit reflects a period after which recipients of the property
ought to be able to rely on the gift without fear
that the transaction will be
unwound, while balancing the needs to address transactions that have had a
defeating effect. The five-year
period is used for insolvent gifts under s 205
of the Insolvency Act 2006, and in respect of the means assessment for long-term
residential
care under sch 2 cl 4 of the Residential Care and Disability Support
Services Act 2018, and reg 9 of the Residential Care and Disability
Support
Services Regulations 2018.
- We
propose that any party should be able to join the third-party recipients,
including the personal representatives, a third-party
recipient who has already
been joined, or the court by its own initiative. This may prevent one party
unfairly shouldering the burden
when there are potentially multiple third
parties who have received property against whom orders could be
sought.
court would only recover the property necessary to satisfy the award it wished
to make under the new Act.
- 9.41 In Chapter
11, we discuss contracting out and settlement agreements. These are agreements
through which parties decide what provision
someone receives from an estate,
rather than the rules of the new Act. It is possible that, under an agreement, a
party would receive
more property than they would be entitled to had they
claimed under the new Act. As a result, the agreement may have a defeating
effect on other parties who would otherwise claim against the property disposed
of under the agreement. We therefore propose that
the anti-avoidance mechanism
presented in this option apply to contracting out and settlement agreements to
the extent property disposed
of under an agreement has a defeating effect, even
if the agreement conforms to the procedural requirements proposed in Chapter 11
for an agreement to be valid.
- 9.42 Under this
option, claimants could apply to the court directly for clawback orders if there
was insufficient property in the
estate to meet their entitlement or claim. This
would avoid the need for personal representatives to seek relationship property
divisions
to meet claims. We therefore propose the removal of personal
representatives’ rights under section 88 of the PRA to apply for
a
division of relationship property on behalf of the estate.
- 9.43 While we
recognise personal representatives will sometimes seek division to ensure there
is sufficient property in the estate
for the gifts the deceased purported to
make under their will, we do not consider a full division of relationship
property is a principled
or proportionate response. Rather, the better approach
is for will-makers to ensure their wills provide gifts that are capable of
being
made from the estate. Education for will- makers and adequate professional
advice should help (see our proposals in Chapter
18 regarding the need for
education). Further, we do not consider it desirable to allow beneficiaries to
claw back property if the
gifts under the will cannot be made from the estate.
Aspects of the deceased’s succession planning regarding property outside
their estate should not be undone to compensate for deficiencies in other
aspects of their succession planning. Instead, the clawback
mechanisms should
only be available to claimants for whom the new Act has established a basis to
recover property outside the estate
despite the deceased’s testamentary
wishes.
- 9.44 A partner
seeking relationship property division could apply for relief through the
additional remedies in the PRA, including,
if adopted, the revised section 44C
in respect of dispositions to trusts recommended in the PRA review.42
Option Three: comprehensive clawback mechanism
- 9.45 This
option would comprehensively identify certain types of property that a claimant
could have recourse to if there was insufficient
property in the estate to meet
entitlements and claims under the new Act (non-estate property). Non-estate
property
- We
recognise that, under this option, the revised s 44C recommended in the PRA
review would grant a partner remedies in respect
of trusts that would not be
available to family provision or contribution claimants. In the PRA review we
identified the use of
trusts as a particular issue that can frustrate the just
division of relationship property: Te Aka Matua o te Ture | Law Commission
Review of the Property (Relationships) Act 1976 | Te Arotake i te
Property (Relationships) Act 1976 (NZLC R143, 2019) at
[11.15]–[11.17].
would be property that has passed, or passes on the death of the deceased, by
reason of:
(a) contracts to make provision in a will, including
mutual wills arrangements;
(b) contracts with a bank or other financial institution providing for the
property in an account or policy to pass to a co-owner
or nominated beneficiary
on the death of the deceased;
(c) gifts that the deceased made in contemplation of death (donationes mortis
causa);
(d) trusts settled by the deceased that were revocable by the deceased during
their lifetime;
(e) beneficial powers of appointment that were exercisable by the deceased
during their lifetime, including any power the deceased
had to appoint trust
property to themselves;43
(f) joint tenancies held by the deceased and any other person;
(g) dispositions by the deceased prior to their death with intent to defeat
an entitlement or claim under the new Act; and
(h) dispositions by the deceased within the five years prior to their death
that have the effect of defeating an entitlement or claim
under the new Act.44
- 9.46 These
categories are types of property that the deceased could have retained or
reclaimed during their lifetime so that the property
would have been available
to meet claims against their estate when they died. Like Option Two, the
categories would apply to any
contracting out or settlement agreement entered
under the new Act that had the effect of defeating a right or claim under the
new
Act.
- 9.47 The court
would have power to order the transfer of the non-estate property or a sum
representing its value to the estate. Third-party
recipients of non-estate
property from whom the property is sought would need to be joined as parties to
the proceeding.45 The holder
of non-estate property should not be required to relinquish the property if they
received it in good faith and for fully
adequate consideration.
- 9.48 Claimants
could apply directly to the court for orders in respect of non-estate property.
Like Option Two, we propose the removal
of personal representatives’
rights to seek relationship property division on behalf of the estate. Again, we
do not see a
reason for personal representatives’ rights to seek a
division to continue alongside this option.
- 9.49 Relationship
property claimants could also apply for relief under the additional remedies
in the PRA, including, if adopted,
the revised section 44C in respect of
dispositions to trusts recommended in the PRA review.
- This
category is intended to capture the kinds of powers the settlor held in
Clayton v Clayton [Vaughan Road Property Trust] [2016] NZSC 29, [2016] 1
NZLR 551.
44 See the
explanation above for the five-year period.
- We
propose that any party should be able to join the third-party recipients,
including the personal representatives, a third-party
recipient who has already
been joined, or the court by its own initiative. This may prevent one party
unfairly shouldering the burden
when there are potentially multiple third
parties who have received property against whom orders could be
sought.
Notices of claim
- 9.50 There
is a case for allowing claimants under the new Act generally to lodge
notices against land in the estate. It would
continue the rights that certain
claimants currently enjoy under the PRA and in equity and expand them to all
claimants under
the new Act.
- 9.51 On the
other hand, notices of claim can prevent dealings with the land and delay the
administration of the estate, thereby affecting
the rights of beneficiaries and
other claimants.
- 9.52 Our
preliminary view is that only partners should be able to lodge a claim in
respect of relationship property claims under the
new Act. The notice could be
lodged against land of the estate and land that could be recovered through an
anti-avoidance mechanism
(depending on which option is preferred). However, the
arguments are finely balanced.
SUMMARY OF PROPOSALS FOR REFORM
Property available to make
awards
- Relationship
property awards should be made from the parts of the estate comprising
relationship property.
- Family
provision awards should fall rateably across the whole estate.
- Contribution
awards that are monetary awards should fall rateably across the whole
estate, although the court should have power to order that the award be made in
relation to specific items of property.
- For all
claims, the court should have discretion to order that the award be
sourced only from particular parts of the estate.
- The
intestacy provisions should apply only to the distribution of the property of
the estate.
Priorities
- Creditors’
rights should generally take priority over all claims under the new Act.
Exceptions to this general rule should be:
- providing
the court with discretion to make contribution awards in relation to specific
property in priority to unsecured creditors;
and
- enabling
the surviving partner to claim a protected interest if, after consideration of
the recommendations from the PRA review, the
Government considers the protected
interest mechanism should continue.
- If an
estate has insufficient property to fully satisfy awards under the new Act,
the property of the estate should be applied to satisfy claims in the
following order of priority:
- to
meet contribution awards
- to
meet relationship property awards
- to
meet family provision awards.
Anti-avoidance mechanisms
- We present
three options for reform.
- Option One
is to maintain the status quo by restating the current law within the new
Act.
- Option Two
is to provide for a limited clawback mechanism targeted at:
- dispositions
of property the deceased made with intent to defeat an entitlement or
claim;
- dispositions
of property the deceased made within five years prior to their death that had
the effect of defeating a claim; and
- the
deceased’s interest in a joint tenancy that has passed by
survivorship.
- Option
Three is to introduce a mechanism that comprehensively identifies the
types of property the court can recover in order to meet claims against an
estate (non- estate property).
- For both
the second and third options, the personal representatives’ rights to seek
a relationship property division on behalf of the estate would be
removed.
QUESTIONS
Partners should be able to lodge a notice of claim over land held by the
estate or that could be recovered through an anti-avoidance mechanism to
protect a claimed relationship property interest.
|
|
Q52
|
Do you agree with the issues we have identified?
|
|
Q53
|
Are there other issues with the law we have not identified?
|
|
Q54
|
What are your views on the proposals for reform?
|
|
Q55
|
Do you have
|
any other suggestions for reform?
|
|
CHAPTER 10
Use
and occupation orders
IN THIS CHAPTER, WE CONSIDER:
- the law enabling
a court to grant orders for the use or occupation of property of an estate, such
as housing, furniture or other household
items; and
- issues with the
current law and proposals for reform.
THE CURRENT LAW
- 10.1 Personal
representatives are required to distribute a deceased’s estate according
to the deceased’s will. If the
deceased has died intestate, they must
distribute the estate according to the intestacy regime under the Administration
Act 1969.
There may, however, be individuals who relied on the deceased for
housing or furniture and other household items. If the deceased’s
will or
an intestacy does not provide for these individuals, the distribution of the
estate may require them to relinquish possession
of the property.
- 10.2 The law
provides several ways in which a court can award certain individuals use and
occupation orders1
notwithstanding the requirements of the will or the intestacy
regime.
Occupation orders under the PRA
- 10.3 Section
27 of the Property (Relationships) Act 1976 (PRA) enables the court to grant a
partner occupation of the family home
or other premises forming part of the
relationship property (an occupation order). An order enables the surviving
partner to occupy
the premises to the exclusion of any other person who would
otherwise be entitled to occupy the premises.2
- “Use
and occupation orders” is used here to refer to an occupation order,
tenancy order or furniture order. This chapter
does not consider occupation
orders over whenua Māori under Te Ture Whenua Māori Act
1993.
2 Property
(Relationships) Act 1976, s 91(2).
- 10.4 The PRA
provides no mechanism for the deceased’s children to apply for an
occupation order. Only partners may apply. However,
when determining whether to
grant an occupation order to a partner, the court must have particular regard to
the need to provide
a home for any minor or dependent child of the
relationship.3
- 10.5 The court
may require a partner to pay occupation rent.4 The purpose of occupation rent
is to compensate for the denied or delayed access for those entitled to the
property.
- 10.6 The case
law shows that the courts generally grant occupation orders for short periods.5
Tenancy orders under the PRA
- 10.7 Section
28 of the PRA empowers the court to vest the tenancy of a dwellinghouse in a
partner (a tenancy order). When a partner
dies, the court may only make the
order if:6
(a) the tenancy
has vested in either the personal representatives of the deceased or the
surviving partner; and
(b) the surviving partner is residing in the dwellinghouse or at the date of
death the deceased partner was the sole tenant of the
dwellinghouse or a
tenant in common with the surviving partner.
- 10.8 Like
occupation orders, the court must have particular regard to the need to provide
a home for any minor or dependent child
of the relationship.7
- 10.9 Tenancy
orders will rarely be made when a partner dies. If the tenancy is in the names
of both partners, it is likely the surviving
partner will be able to continue
the tenancy without the need for orders from the court. If, however, the
deceased was the sole
tenant under a residential tenancy, it is likely the
tenancy will terminate on their death.8
Furniture orders under the PRA
- 10.10 Section
28C of the PRA allows the court to grant a partner exclusive possession of
furniture, household appliances and household
effects (a furniture order). The
court will only grant an order if it is satisfied the items are reasonably
required to equip another
dwellinghouse in which the partner will be living. The
court may make an order for such a period and on such terms as it sees fit.
The
court must have particular regard to any need
3 Property (Relationships)
Act 1976, s 28A(1).
- Occupation
rent can be payable as compensation for post-separation contributions under s
18B of the Property (Relationships) Act 1976
or in the form of interest under
the court’s ancillary powers under s 33(4) of the Property (Relationships)
Act 1976.
- Nicola
Peart “Occupation orders under the PRA” [2011] NZLJ 356 at 356.
Peart’s review of 28 cases decided from 2002 found occupation orders were
granted in 18 of the cases. Orders for a
finite period were made in six cases.
In five cases the period ranged from four to 22 months. In 10 cases, orders were
made pending
sale or division of relationship
property.
6 Property
(Relationships) Act 1976, s 91(3).
7 Property (Relationships) Act 1976, s
28A(1).
- Residential
Tenancies Act 1986, s 50A(1). The court has no power under the Property
(Relationships) Act 1976 to extend a tenancy beyond
its terms, which in this
context would mean the terms set by the Residential Tenancies Act
1986.
of the applicant partner to the items to provide for the needs of any children
of the relationship where those children live or will
be living with the
partner.9
- 10.11 Section
28B of the PRA enables the court to grant a partner the use of furniture,
household appliances and household effects
in a home to which the court has
granted an occupation order under section 27.
Occupation orders under the FPA
- 10.12 The
Family Protection Act 1955 (FPA) contains no provisions expressly empowering the
court to grant a claimant use or occupation
orders over property in the estate.
Nevertheless, there are instances where the court has granted occupation rights
under section
4 of the FPA to ensure “adequate provision” is made
for the claimant.10 More
often, however, rather than grant specific occupation rights, the court will
award a portion of the estate or capital from the
estate to ensure the claimant
can retain the deceased’s home or obtain alternative accommodation.11
Recommendations in the Commission’s review of the
PRA
- 10.13 The
Commission made several recommendations to reform the PRA to elevate
children’s interests in relation to use and occupation
orders. Those
recommendations included the following:
(a) There should be a
presumption in favour of granting a temporary occupation or tenancy order on
application by a principal caregiver
of any minor or dependent children of the
relationship. A court may decline to make an order if the respondent partner
satisfies
the court that an application is not in the child’s best
interests or would otherwise result in serious injustice.12
(b) In some circumstances, the family home should be classified as separate
property.13 The court’s power to
grant occupation orders should extend to the family home regardless of whether
it is relationship property
or separate property.14 There should also be a
limited jurisdiction to grant occupation orders over property held on trust
where either or both partners or
any child of the relationship are beneficiaries
of the
9 Property (Relationships)
Act 1976, s 28C(4).
10 See for example Re Patterson
HC Nelson M84/92, 19 February 2001.
- See
for example Re Torrie HC Christchurch CIV-2005-409-144, 12 October 2005;
Corbett v Down FC Kaikohe FAM- 2007-027-37, 30 May 2008; and D v M
[2012] NZFC 6722.
- Te
Aka Matua o te Ture | Law Commission Review of the Property (Relationships)
Act 1976 | Te Arotake i te Property (Relationships) Act 1976 (NZLC
R143, 2019) at R69 and
[12.62]–[12.68].
13 Specifically
where the home was acquired by a partner before a relationship or as a gift or
inheritance.
- Te
Aka Matua o te Ture | Law Commission Review of the Property (Relationships)
Act 1976 | Te Arotake i te Property (Relationships) Act 1976 (NZLC
R143, 2019) at R94 and [15.97].
trust or either or both partners are trustees. 15 The court would, however,
retain discretion to withhold an order, having regard to the circumstances of
the trust.16
(c) Express
reference to the court’s powers to award occupation rent when appropriate
as a condition of any occupation order.17 However, there should not be
guidance for how a court should calculate occupation rent. The decision will
depend on many factors and
the court should have broad discretion to take all
relevant matters into account.
(d) The court’s power to grant furniture orders should be extended to
other types of property that would come under the new
definition of family
chattels.18
ISSUES
- 10.14 First,
the current law provides no express power for the minor or dependent children of
the deceased or their principal caregiver
to seek a use or occupation order.
Currently, if the children’s accommodation interests are inadequately
provided for under
the will or in an intestacy, they must rely on the surviving
partner to apply for an order under the PRA.19 There may be instances, however, where
the surviving partner is unwilling to apply, or the surviving partner is not the
principal
caregiver of the children.
- 10.15 As a
signatory to the United Nations Convention on the Rights of the Child (the
UNCROC), Aotearoa New Zealand has committed
to ensure that, in matters affecting
children, the best interests of the child shall be a primary consideration.20 Arguably, the law should make
better provision for the use and occupation rights of the deceased’s minor
children following
the death.
- 10.16 Second,
under the current law, the court’s powers to grant occupation orders to a
surviving partner only extend to the
family home and other property forming part
of the relationship property. As explained in the PRA review, in many instances,
the
couple’s family home may not be relationship property.21 For instance, the home may be
held on a trust connected with the family. If the recommendations in the PRA
review are implemented,
the family home may be one partner’s separate
property.
- 10.17 It is
important that the court has adequate powers to ensure partners do not suffer
hardship when relationships end by the
death of their partner. The surviving
partner will
- Te
Aka Matua o te Ture | Law Commission Review of the Property (Relationships)
Act 1976 | Te Arotake i te Property (Relationships) Act 1976 (NZLC
R143, 2019) at R94 and [15.97]–[15.100].
- Te
Aka Matua o te Ture | Law Commission Review of the Property (Relationships)
Act 1976 | Te Arotake i te Property (Relationships) Act 1976 (NZLC
R143, 2019) at [15.100].
- Te
Aka Matua o te Ture | Law Commission Review of the Property (Relationships)
Act 1976 | Te Arotake i te Property (Relationships) Act 1976 (NZLC
R143, 2019) at R95 and [15.104]–[15.106].
- Te
Aka Matua o te Ture | Law Commission Review of the Property (Relationships)
Act 1976 | Te Arotake i te Property (Relationships) Act 1976 (NZLC
R143, 2019) at R70 and [12.70].
- As
noted above, the children could apply for further provision from the estate
under the Family Protection Act 1955, but the courts
are more likely to grant a
capital award from the estate rather than use and occupation rights.
- United
Nations Convention on the Rights of the Child, 1577 UNTS 3 (opened for signature
20 November 1989, entered into force 2 September 1990), art 3.
- Te
Aka Matua o te Ture | Law Commission Review of the Property (Relationships)
Act 1976 | Te Arotake i te Property (Relationships) Act 1976 (NZLC
R143, 2019) at [15.84]–[15.87].
often be an older person with limited means. They may therefore be particularly
vulnerable if they are required to find alternative
accommodation soon after the
death of their partner.
- 10.18 Lastly, as
noted in the PRA review, the court’s power to make furniture orders under
the PRA is restricted in terms of
the types of property included.22 Broadening the property
beyond “furniture, household appliances, and household effects”
could better support the best
interests of children.
PROPOSALS FOR REFORM
- 10.19 We
propose the court’s powers to make occupation, tenancy and furniture
orders should be expressed in the new Act. While
these orders may delay
distribution of the estate and add costs to administration, we consider these
disadvantages are outweighed
by the need for the court to grant use and
occupation rights in the following scenarios.
Occupation orders
- 10.20 We
propose that a court should have the ability to grant an occupation order to a
surviving partner or a principal caregiver
of any minor or dependent child of
the deceased. The purpose of the occupation order should be to provide stability
for the deceased’s
partner as they transition to a life in which they are
not dependent on the deceased for accommodation support. For the
deceased’s
minor or dependent children, the court should consider their
best interests as a primary consideration.
- 10.21 The
inclusion of adult dependent children is to align with the availability of
occupation orders when partners separate, which
we affirmed in the PRA review.23 As the court would consider
their best interests, there may seem to be an inconsistency with family
provision awards, as we are considering
options to restrict eligibility for
family provision awards to only children under a prescribed age. We consider
this difference
is justified because, as we explain below, an occupation order
is distinct from family provision.
- 10.22 The court
should have power to grant the occupation order in respect of any property of
the estate. In addition, it should
have power to grant an order over a home the
deceased owned as a joint tenant with another party that would pass to the
remaining
owner by survivorship. The court should also have a limited
jurisdiction to grant an occupation order over property held on trust
where the
deceased or any minor or dependent child of the deceased are beneficiaries of
the trust. For homes that would pass by survivorship
and homes held on trust,
the court would retain discretion to decline an order, having regard to the
surviving co-owner’s interests
or the circumstances of the
trust.
- Te
Aka Matua o te Ture | Law Commission Review of the Property (Relationships)
Act 1976 | Te Arotake i te Property (Relationships) Act 1976 (NZLC
R143, 2019) at [12.70].
- Whether
the child is “dependent” for the purposes of the PRA is a question
of fact. The case law suggests that adult children
may depend on their parents
for support if they are physically or intellectually disabled, but adult
children who have not progressed
to financial independence due to lack of desire
or motivation are unlikely to be dependent: see B v B (2009) 27 FRNZ 622
(HC) at [81].
Tenancy orders
- 10.23 We
propose that a court should have the ability to grant a tenancy order to a
surviving partner or a principal caregiver of
any minor or dependent child of
the deceased. However, we anticipate the courts will rarely grant tenancy orders
for the reasons
explained above.
Presumption in favour of minor or dependent children of the
deceased
- 10.24 When
the deceased left any minor or dependent child, we propose that the new Act
should contain a presumption in favour of granting
a temporary occupation or
tenancy order to the primary caregiver of the child for the benefit of the
child. A court may decline to
make an order if it is satisfied that an
application is not in the child’s best interests or would otherwise result
in serious
injustice. In determining whether the order would be in the
child’s best interests, the court should have regard
to:
(a) the need to provide a home for the child;
(b) the potentially disruptive effects on the child of a move to other
accommodation; and
(c) the child’s views and preferences if they can be reasonably
ascertained.
- 10.25 In
considering whether the order would cause a serious injustice, the court would
need to consider the interests of beneficiaries
and claimants of the estate and
how they would be affected by the order. The court’s power to award
occupation rent (see below)
is relevant to this assessment.
- 10.26 We
consider this approach is consistent with Aotearoa New Zealand’s
obligations to take a child-centred approach under
the UNCROC and a
parent’s duty to provide for their children. It does, however, recognise
there may be cases where an occupation
order would cause serious injustice and
the court could decline to make the occupation order.
Furniture orders
- 10.27 We
propose that a court should have power to grant furniture orders to a surviving
partner or principal caregiver of any minor
or dependent child of the deceased.
The court should consider the best interests of the child as a primary
consideration.
- 10.28 The types
of property that may be the subject of a furniture order should be extended to
other types of property that would
come under the new Act’s definition of
family chattels (see discussion on family chattels in Chapter 3). This is to
maintain
consistency between the new Act and the recommendations made in the PRA
review for the relationship property regime that applies
to relationships ending
by separation.
Applicants
- 10.29 There
may be individuals who are not the deceased’s partner or minor or
dependent children but have depended on the deceased
for use or occupation of
property. For example, such individuals could include a surviving partner who
despite cohabiting with the
deceased, was not in a qualifying relationship or an
adult child who has not left home. They may need accommodation support.
- 10.30 We do not
propose to extend the category of applicants beyond the surviving partner from a
qualifying relationship or the principal
caregiver of any minor or dependent
child
of the deceased. It is difficult to see why, in the absence of formal occupation
and use rights (such as a licence or a lease), the
deceased should owe legal
obligations to other individuals, especially as the deceased would have no
obligations to provide for them
while alive. We also consider that, in most
cases, the personal representatives would be lenient towards these individuals
as they
transition to alternative accommodation.
Occupation rent
- 10.31 Consistent
with the recommendations in the PRA review, we propose that the court should
have power to order that the recipient
of an occupation order pay occupation
rent to the estate (or trust). However, the new Act should not contain guidance
on how such
rent should be calculated. The decision will depend on many factors,
and the court should have broad discretion to take all relevant
matters into
account.
Relationship with family provision claims
- 10.32 A
court should not be able to satisfy a family provision claim by awarding use or
occupation rights to the claimant. That is
because a family provision award
should reflect the extent of the particular claimant’s rights to family
provision. A use or
occupation order, on the other hand, should be targeted more
towards the applicant’s immediate accommodation needs. An occupation
order
may also be granted to an adult dependent child who is not eligible for a family
provision order. As it is targeted towards
accommodation needs, it should be
possible for a use or occupation order to exceed the deceased’s duties to
make provision
for the applicant. To the extent a use or occupation order goes
beyond the deceased’s duties, the court might require the applicant
to pay
occupation rent. In some cases, the occupation rent could be offset against any
family provision award to the applicant. For
these reasons, occupation, tenancy
and furniture orders should be distinct from family provision
awards.
SUMMARY OF PROPOSALS FOR REFORM
o
homes held on trust where the deceased or any minor or dependent child of the
deceased are beneficiaries of the trust.
Where the deceased left any minor or dependent child, we propose that the new
Act should contain a presumption in favour of granting
a temporary occupation or
tenancy order to the primary caregiver of the child for the benefit of the
child.
•
- The new Act
should provide the court with powers to make:
- occupation
orders;
- tenancy
orders; and
- furniture
orders
in favour of a surviving partner or a principal
caregiver of any minor or dependent child of the deceased.
- The
court’s power to grant an occupation order should extend to:
- homes
the deceased owned as a joint tenant with another party that pass to the
remaining owner by survivorship; and
QUESTIONS
- The court
should have power to order that the recipient of an order pay occupation
rent to the estate (or trust). However, the new Act should not contain guidance
on how such rent should be calculated.
- The
court’s power to make furniture orders should include types of property
that would come under the new Act’s definition of family
chattels.
|
|
Q56
|
Do you agree with the issues we have identified?
|
|
Q57
|
Are there other issues with the law we have not identified?
|
|
Q58
|
What are your views on the proposals for reform?
|
|
Q59
|
Do you have
|
any other suggestions for reform?
|
|
CHAPTER 11
Contracting
out and settlement agreements
IN THIS CHAPTER, WE CONSIDER:
- the law that
governs whether someone, during their lifetime, can make an agreement with
another that determines rights in respect
of their estate when they die instead
of having those rights determined by the relevant statutes (contracting out
agreements);
- the law that
governs whether people can settle any dispute regarding claims against an estate
without the court having to make orders
(settlement agreements); and
- issues with the
current law and proposals for reform.
THE CURRENT LAW
Contracting
out of the PRA and settling claims
- 11.1 Part 6 of
the Property (Relationships) Act 1976 (PRA) enables partners to reach their own
agreement about the division of their
property rather than following the
provisions of the Act. There are different types of agreements. First, section
21 allows partners
in a relationship, or contemplating entering a relationship,
to make a contracting out agreement with respect to the status, ownership
and
division of their property. Second, section 21A provides for partners to enter
an agreement for the purposes of settling any
differences that have arisen
between them during their relationship.
- 11.2 Section 21B
allows agreements where one partner dies. This can apply where proceedings are
commenced while both partners are
alive but then one partner dies or when one
partner has died and the surviving partner or the deceased’s personal
representative
intends to commence or has commenced proceedings. In either case,
the surviving partner and the personal representative may make
an agreement for
the purpose of settling the claim.
- 11.3 Parties
must observe the procedural safeguards in section 21F for an agreement to have
effect.1 These
are:
(a) the agreement must be in writing;
(b) each party to the agreement must have independent legal advice before
signing the agreement;
(c) the signature of each party to the agreement must be witnessed by a
lawyer; and
(d) the lawyer who witnesses the signature must certify that, before the
party signed, the lawyer explained to that party the effect
and implications of
the agreement.
- 11.4 Under
section 21J, a court can set aside an agreement if satisfied that, having regard
to all the circumstances, giving effect
to it would cause serious injustice. In
addition, section 21G provides that section 21F does not limit any other law
that makes
a contract void, voidable or unenforceable.
Contracting out of the FPA and settling claims
- 11.5 There
is nothing in the Family Protection Act 1955 (FPA) that expressly prevents
parties entering agreements during their lifetime
regarding their rights under
the FPA. However, the courts have held that the FPA is paramount as a matter of
state policy and potential
claimants cannot surrender their rights through
agreements.2
- 11.6 The courts
have held that agreements entered to settle FPA claims after the deceased has
died do not prevent a person from pursuing
a claim.3 Nevertheless, we understand
parties often enter “deeds of family arrangement” to settle FPA
claims.4
Contracting out of the TPA and settling claims
- 11.7 A
claim under the Law Reform (Testamentary Promises) Act 1949 (TPA) is, by its
nature, quasi-contractual. If the parties come
to an agreement as to how a TPA
claim would be determined, that would alter the promise upon which the claim is
founded. Consequently,
it would appear that parties can enter contracting out
agreements to determine a claimant’s TPA claims both during the
deceased’s
lifetime and after their death.
- If
an agreement does not comply with the procedural safeguards in s 21F, a court
may declare the agreement has effect, wholly or in
part, if it is satisfied that
the non-compliance has not materially prejudiced the interests of any party to
the agreement: Property
(Relationships) Act 1976, s 21H.
- Gardiner
v Boag [1922] NZGazLawRp 186; [1923] NZLR 739 (SC) at 745–746. But see the recent case
Matthews v Phochai [2020] NZHC 3455, in which the Court, while accepting
the parties’ contracting out agreement was void or voidable insofar as it
purported to
exclude any claim under the Family Protection Act 1955, held that
the agreement was relevant to the assessment of any award, as it
recorded the
parties’ joint intention to be financially independent and leave the
relationship with only the assets they came
in with, plus anything more they had
acquired themselves: at
[61]–[64].
3 Hooker v
Guardian Trust & Executors Co of New Zealand [1927] GLR 536 (SC).
- Bill
Patterson has argued that if the issue came before the courts today, they would
likely hold such deeds of family arrangements
are enforceable: see Bill
Patterson Law of Family Protection and Testamentary Promises (4th ed,
LexisNexis, 2013) at 106–107. Note too s 47(3) of the Administration Act
1969, which provides that claimants cannot
bring an action against an
administrator for distributing an estate when they have advised the
administrator in writing or acknowledged
in any document that they consent to
the distribution or do not intend to make any application that would affect the
distribution.
Contracting out of the intestacy regime
- 11.8 There
are no provisions in the Administration Act 1969 dealing with or prohibiting
contracting out of the intestacy regime. This
is understandable because the
deceased could simply have made a will rather than contracting with another
regarding their entitlements.
There is some case law that has found that
separating partners can contract out of intestacy entitlements.5
- 11.9 Under
section 81, beneficiaries under the regime can disclaim their entitlements.
However, a disclaimer has no effect if any
valuable consideration is given for
it.6
Mutual wills
- 11.10 A
mutual wills arrangement is where two people make wills that dispose of certain
property in a manner they have agreed upon
accompanied by a mutual understanding
that neither party will change or revoke the will or dispose of the property.7
- 11.11 For mutual
wills made after 1 November 2007, section 30 of the Wills Act 2007 applies. It
provides that where two people have
made mutual wills and the first of them to
die (person A) keeps the promise but the second (person B) does not, a person
who would
have benefited from person B’s will had person B kept their
promise may claim from person B’s estate.
- 11.12 For wills
made before 1 November 2007, the common law doctrine of mutual wills continues
to apply. If the surviving person does
not keep their promise, their personal
representative will be required to hold the property on trust for the
beneficiaries of the
mutual wills agreement.8 This doctrine, rather than the
Wills Act, also applies where the survivor acts inconsistently with the mutual
wills agreement during
their lifetime.
ISSUES
Parties
cannot make comprehensive agreements regarding property on death
- 11.13 In our
preliminary view, the law should respect the wishes of partners or people
contemplating entering a relationship to have
their rights and claims against
each other’s estates determined by agreement rather than the relevant
statutes, provided the
parties are capable of looking after their affairs and
have entered the agreement informed of their rights. The current law enabling
parties to contract out of the PRA but not the FPA undermines parties’
freedom to arrange their affairs in the manner they
wish, promoting a certain
and final outcome.
5 Warrender v Warrender
[2013] NZHC 787, [2013] NZFLR 565 at [19].
6 Administration Act 1969, s
81(3)(c).
7 Wilson v Saunders [2016] NZHC
1211, (2016) 17 NZCPR 404 at [8]–[9].
8 Re Newey (Deceased) [1994] 2
NZLR 590 (HC) at 592; and Lewis v Cotton [2001] 2 NZLR (CA) at [42].
The current law can lead to inconsistent outcomes
- 11.14 Several
anomalies can potentially arise under the current law. First, a situation could
arise where an FPA claim undermines
a contracting out agreement under the PRA.
For example, partners may make an agreement under section 21 of the PRA that
certain property
is to be separate property should one of the partners die.
However, the surviving partner could, at least in theory, claim against
the
deceased’s separate property under the FPA.
- 11.15 Second,
the courts have held that they cannot interfere with contracts to make
testamentary provision when determining FPA claims.9 A person could enforce a
contract through which the deceased provided them certain benefits under their
will. However, if a contract
provided that a person agrees not to make a FPA
claim against the estate, the court would not enforce it.
- 11.16 Third,
there is conflicting case law as to whether a former spouse may still succeed
under section 77 of the Administration
Act when they have concluded a
relationship property settlement with the deceased but the marriage has not been
formally dissolved.10
Giving the surviving spouse entitlements under the intestacy regime is
arguably inconsistent with the partners’ intentions
to conclude their
property matters and sever the economic ties of their former
relationship.
There are delays and costs to administration if matters cannot
be settled out of court
- 11.17 It
is unsatisfactory if claims cannot be settled without going to court. The
parties will suffer from extra costs, delays and
the adversarial nature of court
proceedings. Scarce judicial resources may be unnecessarily spent. We explore
this issue further
when discussing resolution of matters out of court in Chapter
14.
It is unclear how claims against estates relate to mutual
wills
- 11.18 It
is unclear what effect a mutual wills arrangement has when a surviving partner
elects option A under Part 8 of the PRA. It
could be argued a mutual wills
arrangement that does not meet the contracting out requirements under the PRA is
void.11 A surviving partner
would therefore not be prevented from electing option A to divide relationship
property despite the mutual wills.
However, it is unclear whether the property
the surviving partner receives from a relationship property division having
chosen option
A would be held on constructive trust or claimable under section
30 of the Wills Act.12
9 Breuer v Wright
[1982] 2 NZLR 77 (CA).
- Compare
Re Trotter HC Christchurch CIV-2009-409-2584, 10 May 2010 at [10]; W v
P [2012] NZFC 3293; and Warrender v Warrender [2013] NZHC 787, [2013]
NZFLR 565 at [19].
- Property
(Relationships) Act 1976, s 21F; and Nicola Peart “Effect of Option
A” in Nicola Peart, Margaret Briggs and Mark
Henaghan (eds)
Relationship Property on Death (Thomson Reuters, Wellington, 2004) 97 at
105–107.
- The
authors of Relationship Property on Death have argued that it should: see
Nicola Peart “Effect of Option A” in Nicola Peart, Margaret Briggs
and Mark Henaghan (eds)
Relationship Property on Death (Thomson Reuters,
Wellington, 2004) 97 at 105–107.
- 11.19 There is
also a wider question about the requirements for finding a mutual wills
arrangement. There have been cases where partners
in a subsequent relationship
have entered wills that made provision for the surviving partner to inherit the
estate on the understanding
they would then provide for the deceased
partner’s children in their will.13 After a partner died, the surviving
partner changed their will to omit the deceased partner’s children. In
these cases, the
court has held a mutual wills arrangement was not present
because there was no evidence that the parties had committed not to revoke
their
wills. A question arises as to whether the evidential threshold at which the
courts should find a mutual wills relationship
arrangement exists should be
lowered.
Contracting out and settlement agreements may leave
insufficient property to meet claims
- 11.20 It
is possible that partners’ contracting out and settlement agreements will
leave insufficient property in the deceased’s
estate to meet claims. We
consider this issue further when discussing awards, priorities and
anti-avoidance in Chapter 9.
PROPOSALS FOR REFORM
Contracting
out agreements
Partners should be able to contract out of all claims under
the new Act
- 11.21 We
propose that partners or people contemplating entering a relationship, who are
capable of looking after their affairs and
are informed of their rights, should
be able to enter contracting out agreements that deal with relationship property
entitlements
and family provision claims under the new Act.
- 11.22 Our
preliminary view is that contracting out agreements under the new Act should be
void unless they comply with the same procedural
safeguards that currently apply
to agreements entered under the PRA, namely:
(a) the agreement must
be in writing;
(b) each party to the agreement must have independent legal advice before
signing the agreement;
(c) the signature of each party to the agreement must be witnessed by a
lawyer; and
(d) the lawyer who witnesses the signature must certify that, before the
party signed, the lawyer explained to that party the effect
and implications of
the agreement.
- 11.23 These
safeguards recognise that contracts regarding relationship property or family
provision claims may be made between parties
who do not approach one another as
contracting parties at arm’s length. Rather, they are in relationships of
love, affection
and aroha. The parties may be of unequal bargaining power. The
purpose of the safeguards is to ensure people do not sign away their
rights
without appreciating their entitlements under the new Act and the implications
of the agreement.
- 11.24 If an
agreement does not comply with the formalities, a court should have powers to
give effect to the agreement if non-compliance
has not caused material prejudice
to the
13 See for example
Cleary v Cockroft [2020] NZHC 1452; and McNeish v McArthur [2019]
NZHC 3281, [2020] 2 NZLR 287.
parties. A court should only give effect to the agreement to the extent it would
not be caught by any anti-avoidance provisions that
may be implemented in the
new Act.
- 11.25 We propose
that these agreements should also be subject to any other law that makes a
contract void, voidable or unenforceable.
A court should also be able to set an
agreement aside if satisfied that giving effect to it would cause serious
injustice. This will
enable the court to address agreements that have, for
example, become unfair or unreasonable in light of any changes in circumstances
since they were made. The court should have regard to the matters
currently set out in section 21J of the PRA, including
whether the
estate has been wholly or partly distributed.14 The factors should also
direct the court to have regard to the best interests of any minor or dependent
children of the deceased,
like the recommendation in the PRA review.15
- 11.26 Depending
on what anti-avoidance mechanisms (if any) are contained within the new Act (see
the proposals for reform set out
in Chapter 9), a court should have power to set
aside contracting out agreements that defeat the claims of others against the
estate.
Procedural safeguards are not needed for agreements
concerning family provision and contribution claims
- 11.27 In
Chapter 4 on family provision claims, we raise the option of allowing children
of the deceased to claim an award to recognise
them as members of the
deceased’s family. We do not, however, consider the new Act should make
express provision for adult
children to enter a formal contracting out agreement
with the deceased. That is because, in determining whether to make an award,
the
court should have regard to all the circumstances, such as the deceased’s
reasons not to recognise the child in their will
and any provision that the
deceased made for the child during the deceased’s lifetime. Omitting
express provision in the new
Act for adult children to enter agreements will not
preclude the parties from entering agreements and will instead enable the
parties
to enter arrangements that might not comply with the statutory
contracting out requirements. For example, a person may provide their
adult
child with support during their life on the understanding it was an advance on
their inheritance and no further provision would
be available for that child
when the deceased dies. The court should not be required to disregard this
arrangement as void because
it does not qualify as a contracting out
agreement.
- 11.28 We are
also mindful that an award to an adult child is more discretionary than a
partner’s relationship property entitlements.
It would be difficult to
apply the other provisions that apply to contracting out agreements in the PRA,
such as when the court should
validate a non-complying agreement or set an
agreement aside for serious injustice.
- 11.29 We do not
consider the parties should be required to follow the same procedural
safeguards when making a contract that relates
to a person’s rights to
bring a contribution claim. It is preferable that parties are able to make
agreements for services
or other benefits that might otherwise give rise to a
contribution claim without the potential barrier
14 Property
(Relationships) Act 1976, s 21J(5).
- Te
Aka Matua o te Ture | Law Commission Review of the Property (Relationships)
Act 1976 | Te Arotake i te Property (Relationships) Act 1976 (NZLC
R143, 2019) at R78 and [13.96]–[13.98]. The court could also unwind an
agreement if the deceased’s children chose
to challenge an agreement
through anti-avoidance provisions, meaning there are potentially two routes
through which the court could
set aside or vary an agreement when it infringed
on the bests interests of minor or dependent children.
of having to go through the full procedural safeguards. Similarly, if the
parties wish to agree that the provision of those benefits
will not give rise to
a contribution claim, they should not be obstructed by needing to observe the
procedural safeguards. In any
event, parties already entering a contracting out
or settlement agreement could include terms relating to contribution
claims.
Effect of a relationship property settlement when a partner
dies
- 11.30 Under
the present law, it is unclear whether a relationship property settlement
between partners precludes them from making
an FPA claim and/or precludes them
from entitlements under the intestacy regime. Our preliminary view is that an
agreement between
former partners on their separation that purports to be a
full and final settlement of relationship property claims should be presumed
to
be a full and final settlement of the surviving partner’s claims and
entitlements under the new Act unless the agreement
provides otherwise.16
Mutual wills
- 11.31 We
propose that mutual wills agreements should be subject to the same procedural
requirements as contracting out agreements
regarding claims against the
other’s estate. That is, if the parties agree not to revoke their wills
or deal with property
inconsistently with them, that agreement should be
recorded in writing, their signatures should be witnessed, and the lawyers
advising
each partner should certify the agreement. If these requirements were
not met, the court could give effect to the agreement if
neither partner
suffered material prejudice. A court should be able to vary or set aside
agreements that would cause serious
injustice.
- 11.32 Our
reasons for favouring this approach are:
(a) consistency with the
wider regime for contracting out;
(b) it would avoid the contentious litigation often seen in the courts as to
whether the partners did in fact enter a mutual wills
arrangement; and
(c) because the court would have residual powers to give effect to the
agreement or to vary or set the agreement aside, it will help
address instances
where mutual wills ought or ought not to be enforced.
No ability to contract out of some family provision
claims
- 11.33 There
are strong public policy reasons to prohibit agreements that purport to contract
out of a deceased’s obligations
to provide for their minor children and
dependent disabled children by precluding family provision claims. There are
also practical
and legal issues about minor and some disabled children’s
capacity to be party to such agreements.
- Our
preliminary view is the presumption should apply equally to a non-complying
agreement that a court has ordered should be given
effect.
Settlement agreements
Parties should be able to settle their claims under the new
Act by agreement
- 11.34 Our
preliminary view is that parties and personal representatives of an estate,
informed of their rights, should be able to
enter an agreement that settles any
claim under the new Act. We seek feedback on what procedural requirements should
apply when parties
enter settlement agreements. We present two options for
reform.
Option One: the new Act does not prescribe any procedural
safeguards
- 11.35 The
first option is to clarify in statute that parties can enter an agreement to
settle any differences arising between them
under the new Act but prescribe no
procedural requirements for those parties to observe when entering agreements.
This approach would
continue the existing practice of parties entering deeds of
family arrangement. It would be a matter of judgement for the parties,
particularly the personal representatives, as to how the agreement should be
entered. For example, questions that might need to be
considered
include:
(a) who would need to be party to the settlement
agreement;
(b) which parties would need to obtain independent legal advice;
(c) how parties who have chosen against actively participating in the
settlement negotiations should be included in the agreement;
and
(d) how beneficiaries who are minors, unborn or unascertained or otherwise
lack capacity ought to be represented.
- 11.36 If the
personal representatives or other parties consider it would not be appropriate
to enter the settlement agreement, they
could submit the proposed settlement to
court for approval.
- 11.37 Under this
option, the new Act should provide the court with power to vary or set aside an
agreement that would cause serious
injustice. Depending on what anti-avoidance
mechanisms are contained within the new Act, a settlement agreement could
potentially
be set aside and the property clawed back if it had the effect of
defeating claims.
- 11.38 The main
advantage of this option is it should be easier for the parties to conclude
settlements than if more stringent procedural
safeguards applied.
- 11.39 The
disadvantages of this option include:
(a) the possible uncertainty
as to when and how it is permissible for the parties to enter a settlement
agreement; and
(b) the potential that parties enter imprudent agreements they would not
otherwise have entered had more stringent safeguards applied.
Option Two: the new Act prescribes procedural
safeguards
- 11.40 The
alternative option is for the new Act to require parties to follow the same
procedure applying to contracting out agreements
we have proposed above,
namely:
(a) the agreement must be in writing;
(b) each party to the agreement must have independent legal advice before
signing the agreement;
(c) the signature of each party to the agreement must be
witnessed by a lawyer; and
(d) the lawyer who witnesses the signature must certify that, before the
party signed, the lawyer explained to that party the effect
and implications of
the agreement.
- 11.41 The
procedure would apply to all parties entering the settlement agreement,
including beneficiaries.
- 11.42 A question
arises as to how parties who are minors, unascertained (such as beneficiaries
yet to be born) or otherwise lack capacity
are to enter agreements. We discuss
this question further in Chapter 14 regarding the resolution of matters out of
court. We propose
that a court should appoint a representative for these
parties. Those representatives may agree to any settlement agreement, but
the
settlement should then be approved by the court. 17 The same procedural
safeguards should apply to these parties when they enter settlement
agreements.
- 11.43 Under this
option, the court should retain power to vary or set aside agreements that would
cause serious injustice. Depending
on what anti-avoidance mechanisms are
contained within the new Act, a settlement agreement could potentially be set
aside and property
clawed back if it had the effect of defeating claims.
- 11.44 The
advantage of this option is that it would help ensure parties do not compromise
their rights without understanding the effects
and implications of the
settlement agreement into which they are entering. The court would probably be
required to set aside agreements
less often than under the first option because
the parties would be less likely to enter bad bargains.
- 11.45 The
approach would also have the advantage of being consistent with the procedure we
propose should apply to contracting out
agreements made while the deceased is
still alive. It is also consistent with the approach set out in the PRA applying
to couples
concluding an agreement settling their relationship property
matters.
- 11.46 The main
disadvantage of this option is the burden it may place on parties to obtain
independent legal advice. When minor, unascertained
or parties otherwise lacking
capacity are involved, it would require the involvement of the court, which
could delay a settlement
and increase cost.
SUMMARY OF PROPOSALS FOR REFORM
- The
new Act should permit partners or those contemplating entering a relationship
to enter contracting out agreements regarding relationship property and
family provision claims. It should not be possible to contract
out of minor
children’s and disabled adult children’s family provision
claims.
- Contracting
out agreements should be void unless the following requirements are
complied with:
o The agreement must be in writing.
17 This follows the
approach in s 144(1) of the Trusts Act 2019.
- Each
party to the agreement must have independent legal advice before signing the
agreement.
- The
signature of each party to the agreement must be witnessed by a lawyer.
- The
lawyer who witnesses the signature must certify that, before the party signed,
the lawyer explained to that party the effect and
implications of the
agreement.
- If an
agreement does not comply with the formalities, a court should have powers
to give effect to the agreement if non-compliance has not caused material
prejudice to the parties.
- A court
should also be able to vary or set an agreement aside if it is satisfied
that giving effect to the agreement would cause serious injustice.
- An
agreement between former partners on their separation that purports to be a
full and final settlement of relationship property claims should be
presumed to be a full and final settlement of the surviving partner’s
claims and entitlements under the new Act unless the agreement provides
otherwise.
- Mutual
wills agreements should be subject to the same procedural requirements as
contracting out agreements regarding claims against the other’s estate. If
the parties agree not to revoke their wills or deal
with property inconsistently
with them, that agreement should be recorded in writing, their signatures
should be witnessed
and the lawyers advising each partner should certify the
agreement.
- The new Act
should not prevent adult parties from entering agreements regarding a
family provision claim for recognition.
- The new Act
should permit parties to enter agreements that settle any claim under the
new Act. We present two options for what procedure the parties ought to observe
when entering an agreement:
- Option
One is to clarify in statute that parties can enter an agreement to settle any
differences arising between them under the new
Act but prescribe no procedural
requirements for those parties to observe when entering agreements.
- Option
Two is require parties to follow the same procedure applying to contracting out
agreements we have proposed above. If parties
are minors, unascertained (such as
beneficiaries yet to be born) or otherwise lack capacity, we propose that a
court should appoint
a representative for these parties. Those representatives
may agree to any settlement agreement, but the settlement should then be
approved by the court.
- Under both
options the court should have power to vary or set aside agreements that
would cause serious injustice.
QUESTIONS
|
|
Q60
|
Do you agree with the issues we have identified?
|
|
Q61
|
Are there other issues with the law we have not identified?
|
|
Q62
|
What are your views on the proposals for reform?
|
|
Q63
|
Do you have
|
any other suggestions for reform?
|
|
CHAPTER 12
Jurisdiction
of the courts
IN THIS CHAPTER, WE CONSIDER:
- the jurisdiction
of te Kōti Whānau | the Family Court and te Kōti Matua |
the High Court to hear and determine
claims against an estate; and
- issues with the
current law and proposals for reform.
THE CURRENT LAW
- 12.1 The
discussion in this chapter focuses on the jurisdiction of te Kōti
Whānau | the Family Court (the Family Court)
and te Kōti Matua | the
High Court (the High Court) when claims are made against estates. Te Kooti
Whenua Māori | the
Māori Land Court has jurisdiction for succession
matters regarding whenua Māori under Te Ture Whenua Maori Act 1993.
We
discuss the role of te Kooti Whenua Māori | the Māori Land Court
further in Chapters 7 and 15.
The PRA
- 12.2 Every
application under the Property (Relationships) Act 1976 (PRA) must be
heard by the Family Court.1
The Family Court can transfer the proceedings to the High Court if the
judge is satisfied that the High Court is the more appropriate
venue, having
regard to:2
(a) the
complexity of the proceedings or of any question in issue in the
proceedings;
(b) any proceedings before the High Court that are between the same parties
and that involve related issues; and
(c) any other matter that the judge considers relevant in the
circumstances.
1 Property (Relationships)
Act 1976, s 22(1).
2 Property (Relationships) Act 1976, s
38A.
- 12.3 Parties to
a proceeding or any other person prejudicially affected by the decision have an
automatic right of appeal to the
High Court.3 Appeals against decisions of
the High Court are governed by the Senior Courts Act 2016.4
The FPA and the TPA
- 12.4 The
Family Protection Act 1955 (FPA) and the Law Reform (Testamentary Promises) Act
1949 (TPA) have very similar jurisdictional
rules. The High Court and Family
Court have concurrent jurisdiction with respect to proceedings under both
Acts.5 The Family Court does
not have jurisdiction if proceedings related to the same matter have already
been filed with the High Court.6
The Family Court may refer proceedings or any question in the proceedings
to the High Court if it considers it appropriate. 7 The High Court, upon
application by any party, must order that the proceedings be removed to the High
Court unless it is satisfied
that the proceedings would be more appropriately
dealt with in the Family Court.8
- 12.5 Parties to
a proceeding, or any other person prejudicially affected by the proceedings,
have an automatic right of appeal to
the High Court. 9 Appeals against a High Court
decision are governed by the Senior Courts Act 2016.10
The intestacy regime
- 12.6 The
Administration Act 1969 provides that the High Court has jurisdiction to
determine proceedings relating to testamentary matters
and matters relating to
the estate of deceased persons. 11 This general provision
encompasses matters relating to intestate estates, although there are more
specific rules in relation to certain
matters:
(a) The High Court
has jurisdiction to grant letters of administration and to determine who
should be appointed as administrator.12
- Property
(Relationships) Act 1976, s 39. The automatic right of appeal applies to a
Family Court or District Court decision to make
or refuse to make an order, or
to dismiss or otherwise finally determine the
proceedings.
4 Property
(Relationships) Act 1976, s 39B.
5 Family Protection Act 1955, s 3A(1);
and Law Reform (Testamentary Promises) Act 1949, s 5(1).
- Family
Protection Act 1955, s 3A(2); and Law Reform (Testamentary Promises) Act 1949, s
5(2). For the FPA, proceedings will relate
to the same matter if a non-FPA
proceeding might have the effect of enlarging or decreasing the estate, thus
affecting the viability
of an FPA claim: see Hayes v Family Court [2015]
NZCA 470, (2015) 30 FRNZ
414.
7 Family Protection Act
1955, s 3A(3); and Law Reform (Testamentary Promises) Act 1949, s 5(3).
8 Family Protection Act 1955, s 3A(4);
and Law Reform (Testamentary Promises) Act 1949, s 5(4).
- Family
Protection Act 1955, s 15(1); and Law Reform (Testamentary Promises) Act 1949, s
5A(1). Similarly to the PRA, the right of
appeal is against a decision of the
Family Court or District Court to make or refuse to make an order, dismiss
proceedings or otherwise
finally determine proceedings: Family Protection Act
1955, s 15(1AA); and Law Reform (Testamentary Promises) Act 1949, s
5A(1AA).
- Decisions
of the High Court are final unless the appellant obtains leave from the Court of
Appeal: Senior Courts Act 2016, s
60(1).
11 Administration Act
1969, s 5.
12 Administration Act 1969, ss 5 and 6;
and High Court Rules 2016, r 27.35.
(b) The High Court has jurisdiction to determine the validity of
a will or its interpretation.13
The High Court’s determination may lead to a total or partial
intestacy.
(c) The Family Court may give approval for a person
under 18 years to make, change revoke or revive a will.14 The Family Court’s
determination may lead to a total or partial intestacy.
(d) The High Court may decide that a surviving de facto partner who was in a
relationship of short duration should succeed on the
deceased partner’s
intestacy.15
(e) A person can claim against an intestate estate under the PRA, FPA and
TPA, in which case, the jurisdictional rules under those
Acts will apply.16
(f) The administrators will hold an intestate estate on trust. Trustees
may therefore apply to the High Court for directions,17 or beneficiaries may apply to the
High Court to review a trustee’s decision.18
ISSUES
Which
court is the most appropriate to deal with claims?
- 12.7 The central
issue is the appropriate forum to deal with claims under the new Act. We
consider the Family Court and High Court
in turn.
- 12.8 On the one
hand, there is a strong argument for the Family Court having first instance
jurisdiction, with the power to transfer
proceedings to the High Court and being
subject to rights of appeal. Factors in favour of this approach include the
following:
(a) The specialist jurisdiction of the Family Court in
matters concerning families, relationships and children’s interests.
The
Family Court has held jurisdiction for PRA matters for 40 years, and FPA and TPA
matters for 30 years.
(b) Proceedings in the Family Court are private as hearings are generally not
open to the public. 19
Parties to a dispute may prefer privacy if the dispute centres on
questions like whether the deceased and the surviving partner were
in a
qualifying relationship.
(c) The Family Court is generally more accessible as Family Court judges are
stationed in towns across Aotearoa New Zealand.
(d) Family Court proceedings must be conducted in such a way as to avoid
unnecessary formality.20
13 Wills Act 2007, ss 14
and 32.
14 Wills Act 2007, s 9.
15 Administration Act 1969, s 77B.
- Property
(Relationships) Act 1976, s 61; Family Protection Act 1955, s 4; Law Reform
(Testamentary Promises) Act 1949, s
3.
17 Trusts Act 2019, s
133.
18 Trusts Act 2019, s 95.
19 Family Court Act 1980, s 11A.
20 Family Court Act 1980, s 10(1).
(e) Lawyers acting for parties in Family Court proceedings must,
so far as possible, promote conciliation.21
(f) The overall costs of Family Court proceedings are generally lower than
High Court proceedings.
- 12.9 On the
other hand, there are reasons to favour the High Court having first instance
jurisdiction:
(a) Giving the Family Court exclusive first instance
jurisdiction could increase its already heavy workload and exacerbate delays.22
(b) A claim against an estate can be brought alongside other claims for which
the High Court has exclusive jurisdiction, such as challenging
the validity of a
will or the replacement of a personal representative.
(c) The claims against estates proposed in this Issues Paper may be complex
and may be more appropriate for the High Court’s
determination. For
example, contribution claims and anti-avoidance provisions could involve
difficult questions of law and fact.
Rights of appeal against interlocutory matters are
uncertain
- 12.10 Some
High Court decisions have interpreted the right to appeal under the PRA as
limited to orders that finally determine proceedings.23 However, in L v L, the
High Court held there is a right of appeal against interlocutory decisions under
the PRA.24
- 12.11 The courts
have also been divided on rights of appeal under the FPA. In Re
McIlraith, the High Court held there was no automatic right of appeal
against an interlocutory decision given the terms of section 15(1AA)
of the
FPA.25 On the other hand,
in E v E, the High Court refused to follow Re McIlraith,
relying instead on the District Court Act 1947.26
- 12.12 The
conflicting decisions and consequent uncertainty are a matter the new Act ought
to resolve.
Jurisdictional limitations of the Family Court
- 12.13 There
are questions regarding the Family Court’s jurisdiction to address certain
property issues that may arise under
the PRA, such as whether a valid trust
exists. Similar issues may arise in FPA and TPA proceedings where claimants try
to impugn
certain
21 Family Court Act 1980,
s 9A.
- See
Rosslyn Noonan, La-Verne King and Chris Dellabarca Te Korowai Ture
ā-Whānau: The final report of the Independent Panel examining the 2014
family justice reforms (Tāhū o te Ture | Ministry of Justice, May
2019) at 24 for findings regarding delays and workload of court staff.
- Dunsford
v Shanly [2012] NZHC 257 at [7]–[8], applying E v E [2005]
NZFLR 806 (HC) and Crick v McIlraith HC Dunedin CIV-2004-412-37, 1 June
2004. See also Smith v Smith HC Whangarei CIV-2003-488-394, 12 March
2004.
24 L v L [2017]
NZHC 2529 at [22].
25 Crick v McIlraith HC Dunedin
CIV-2004-412-37, 1 June 2004 at [3].
- E
v E [2005] NZFLR 806 (HC), relying on s 72 of the District Courts Act 1947,
now s 124 of the District Court Act 2016. See also R v N [2014] NZHC
1295, in which the Court held it had jurisdiction to hear an appeal from an
interlocutory direction in an FPA proceeding.
transactions. For example, property purportedly settled on a trust that the
court declares invalid would revert to the deceased’s
estate and be
available to satisfy a claim.
- 12.14 These
issues have been partly addressed by section 141 of the Trusts Act 2019. That
provision gives the Family Court the power
to make any order or give any
direction available under the Trusts Act in proceedings for which the Family
Court has jurisdiction
under section 11 of the Family Court Act 1980.
- 12.15 In the PRA
review, we recommended that, in relationship property proceedings, the
Family Court should have jurisdiction
to hear and determine any related matter
within the general civil and equitable jurisdiction of te Kōti-ā-Rohe
| the District
Court pursuant to sections 74 and 76 of the District Court Act
2016.27
PROPOSALS FOR REFORM
First
instance jurisdiction
- 12.16 We propose
that the Family Court and the High Court should have concurrent first instance
jurisdiction to hear claims under
the new Act. We generally favour the Family
Court retaining first instance jurisdiction because of the “family”
nature
of the claims under the new Act, the relative accessibility of the Family
Court and the proven expertise of the Family Court. However,
there may be
instances where it is appropriate for the High Court to have jurisdiction, such
as when the proceedings involve questions
affecting the estate that are in the
exclusive jurisdiction of the High Court or where the issues are particularly
complex.
- 12.17 It would
be possible to involve the High Court through an uplift approach, like that
taken in the PRA, which we affirmed in
the PRA review.28 The Family Court could have
first instance jurisdiction generally but be able to order the transfer of
proceedings in the High Court.
Our preliminary view, however, is that the better
approach is concurrent jurisdiction. We consider there is less risk that a party
would use the High Court jurisdiction for tactical advantage in proceedings
under the new Act than in proceedings under the PRA.29 The FPA and TPA have provided
for concurrent jurisdiction for several years now, and there appears to be
little criticism of that
approach.
- 12.18 We have
also heard that the High Court procedures and case management system enable
cases to be heard more efficiently in the
High Court. In Chapter 13, we consider
proposals to improve procedures in the Family Court.
- 12.19 The new
Act should continue the FPA and TPA’s approach of requiring the High Court
to hear the claims if proceedings relating
to the same matter have already been
commenced
- Te
Aka Matua o te Ture | Law Commission Review of the Property (Relationships)
Act 1976 | Te Arotake i te Property (Relationships) Act 1976 (NZLC
R143, 2019) at [17.41]. We also recommended the financial limit on the District
Court’s jurisdiction should not apply.
- Te
Aka Matua o te Ture | Law Commission Review of the Property (Relationships)
Act 1976 | Te Arotake i te Property (Relationships) Act 1976 (NZLC
R143, 2019) at R114–R115.
- See
discussion in Te Aka Matua o te Ture | Law Commission Review of the Property
(Relationships) Act 1976 | Te Arotake i te Property (Relationships) Act
1976 (NZLC R143, 2019) at [17.37(e)].
in the High Court. It is procedurally more efficient that all matters be
considered by the same court at the same time.
- 12.20 We propose
that the new Act should contain directions on when proceedings already filed in
the Family Court, or a question in
those proceedings ought to be removed to the
High Court. The Court should have regard to:30
(a) the complexity of the
proceedings or any question in issue in the proceedings;
(b) any proceedings before the Family Court or High Court that relate to the
same matters; and
(c) any other matter the judge considers relevant in the circumstances.
- 12.21 We do not
propose a provision for when the High Court should transfer proceedings to the
Family Court. We are cautious about
creating an additional procedural matter
than could be argued over and used to delay the resolution of substantive
matters. We also
note that the FPA and TPA do not include a power for the High
Court to transfer a matter to the Family Court and we have encountered
no
significant criticism of this approach.
- 12.22 Given the
proposal that the Family Court and the High Court ought to exercise concurrent
jurisdiction, both Courts should be
capable of exercising the power to transfer
proceedings to the High Court.
- 12.23 The High
Court should continue to hold jurisdiction for issues concerning the
administration and distribution of an intestate
estate. We anticipate that
matters relating to an intestacy are most likely to come before the court
because personal representatives
apply for directions, such as on the validity
of a will or the standing of an individual to succeed under the intestacy
regime. The
High Court currently holds jurisdiction for such
applications.
Rights of appeal against interlocutory matters
- 12.24 The
new Act should permit appeals as of right against interlocutory decisions that
can have a significant impact on the parties’
rights and obligations. The
interlocutory matters on which parties should have an automatic right of appeal
include:
(a) occupation, tenancy and furniture orders;
(b) transfers of the proceeding to the Family Court or High Court; and
(c) orders for the disclosure of information.
- 12.25 For all
other interlocutory matters, the appellant should be required to obtain the
leave of the court to appeal. This
requirement is to minimise risks that
parties unduly protract proceedings with appeals.
- 12.26 This
approach is consistent with our recommendations in the PRA review.31
30 These are the same
factors as in s 38A of the Property (Relationships) Act 1976.
- Te
Aka Matua o te Ture | Law Commission Review of the Property (Relationships)
Act 1976 | Te Arotake i te Property (Relationships) Act 1976 (NZLC
R143, 2019) at R119 and [17.53].
QUESTIONS
Jurisdictional limitations of the Family Court
- 12.27 In
our preliminary view, when dealing with matters under the new Act, the Family
Court should have jurisdiction to hear and
determine any related matter within
the general civil and equitable jurisdiction of te Kōti-ā-Rohe | the
District Court
pursuant to sections 74 and 76 of the District Court Act. This
should include jurisdiction to grant any remedy pursuant to section
84 of the
District Court Act. This accords with our recommendations regarding Family Court
jurisdiction in the PRA review.32
- 12.28 Clarifying
the equitable jurisdiction in this way will not detract from the statutes that
require the High Court to exercise
jurisdiction for certain succession matters,
like the Administration Act and the Wills Act 2007.
SUMMARY OF PROPOSALS FOR REFORM
- The
Family Court and the High Court should have concurrent first instance
jurisdiction to hear claims under the new Act, subject to both Courts
having the power to remove the proceedings to the High Court.
- The High
Court should continue to hold jurisdiction for issues concerning the
administration and distribution of an intestate estate.
- The new Act
should permit appeals as of right against interlocutory decisions that can
have a significant impact on the parties’ rights and obligations,
namely:
- occupation,
tenancy and furniture orders;
- transfers
of the proceeding to the Family Court or High Court; and
- orders
for the disclosure of information.
- The Family
Court should have jurisdiction to hear and determine any matter within the
general civil and equitable jurisdiction of the District Court pursuant to
sections 74 and 76 of the District Court Act 2016.
|
|
Q64
|
Do you agree with the issues we have identified?
|
|
Q65
|
Are there other issues with the law we have not identified?
|
|
Q66
|
What are your views on the proposals for reform?
|
|
Q67
|
Do you have
|
any other suggestions for reform?
|
|
- See
discussion in Te Aka Matua o te Ture | Law Commission Review of the Property
(Relationships) Act 1976 | Te Arotake i te Property (Relationships) Act
1976 (NZLC R143, 2019) at [17.5]–[17.20].
CHAPTER 13
Resolving
disputes in court
IN THIS CHAPTER, WE CONSIDER:
- delays in te
Kōti Whānau | the Family Court; and
- issues with the
current law and proposals for reform.
costs;
representation of minors or people lacking capacity;
•
evidence;
•
•
- limitation
periods for making claims;
- disclosure of
information;
LIMITATION
PERIODS
The current law
- 13.1 Generally,
proceedings under the Property (Relationships) Act 1976 (PRA), the Family
Protection Act 1955 (FPA) and the Law Reform
(Testamentary Promises) Act 1949
(TPA) must be commenced within 12 months from the grant of administration. 1 A two-year period applies if
the application is made under the FPA by a personal representative on behalf of
a person who is not of
full age or mental capacity.2
- Property
(Relationships) Act 1976, s 90; Family Protection Act 1955, s 9; and Law Reform
(Testamentary Promises) Act 1949, s 6. Note,
the TPA does not refer to the grant
of administration being made in Aotearoa New Zealand and it is therefore
possible that time may
commence from the date of a grant first obtained outside
of Aotearoa New Zealand. Patterson submits, however, that because the TPA
is
considered a matter of administration rather than succession, at least in
respect of immovables situated in Aotearoa New Zealand
and probably movables,
time will not commence until
a grant is made (or resealed) in
Aotearoa New Zealand: see Bill Patterson Law of Family Protection and
Testamentary Promises (4th ed, LexisNexis, 2013) at 301.
2 Family Protection Act 1955, s
9(2)(a).
- 13.2 The court
may extend the time limits in some circumstances, although an application for an
extension cannot be made after the
final distribution of the estate. The TPA and
PRA do not define what is meant by final distribution. However, case law has
established
that in proceedings under these Acts, it means the point where the
personal representative has completed administration of the estate
and becomes
the trustee for the beneficiaries of those assets, even if those assets have not
actually been distributed. 3
A different approach is taken under the FPA, where section 2(4) clarifies
that, for the purpose of that Act, distribution will not
be deemed to have
occurred simply because the administrator has finished their administrative
duties in respect of that property
and they or another trustee are holding the
property on trust.4 Final
distribution requires that the assets are transferred to those beneficially
entitled.5
- 13.3 A surviving
partner has six months from the grant of administration in Aotearoa New Zealand
in which to make election under
the PRA whether to seek division under the Act
(option A) or accept whatever provision is made for them under the deceased
partner’s
will or on their intestacy (option B). 6 If the estate is small,
meaning that it can be distributed without the need for the grant of
administration,7 the choice
must be made within the later of:8
(a) six months from the date
of the deceased’s death; or
(b) six months from the grant of administration in Aotearoa New Zealand (if
the grant is made within six months of the deceased’s
death).
- 13.4 A surviving
partner must have chosen option A to commence proceedings under the PRA.9 The court may extend the time
for making the choice.10 If a
surviving partner makes no election within the relevant timeframe, including any
extended timeframe, they are
- See
Lilley v Public Trustee [1981] 1 NZLR 41 (PC) and Sullivan v Brett
[1981] 2 NZLR 202 (CA) in respect of final distribution under the TPA. The
concept of assent has evolved as the means by which the personal representative
might indicate that they do not require particular property in the estate for
the purposes of administration and the estate assets
may pass to the
beneficiaries, however, it is rare in Aotearoa New Zealand for personal
representatives to formally give assent:
Sullivan v Brett [1981] 2 NZLR
202 (CA) at 207. The stricter approach has been applied by te Kōti
Pīra | the Court of Appeal to proceedings under the PRA’s
predecessor
the Matrimonial Property Act 1963 (see Re Magson [1983] NZLR 592 (CA))
and it appears likely that the same approach would be consistently taken to
proceedings under the PRA: see Bill Patterson Law of Family Protection and
Testamentary Promises (4th ed, LexisNexis, 2013) at 259 and 274; R v D
[Relationship property] [2009] NZFLR 607 (FC); and McConkey v Clarke
[2019] NZHC 924, [2019] NZFLR 170 at [74].
- Administrative
duties will include proving the will, burying the deceased, getting in the
assets and paying debts, funeral and testamentary
expenses.
- John
Caldwell Family Law Service (NZ) (online looseleaf ed, LexisNexis) at
[7.908.01]. Multiple cases have considered whether final distribution has
occurred in respect
of proceedings under the FPA: see for example Re Hill
(dec’d) [1998] NZHC 914; [1999] NZFLR 268 (HC) at 275; Re Kahn (decd) [2008] NZHC 314; [2008]
NZFLR 782 (HC) at [18]; Gudgeon v Public Trustee [1960] NZLR 233 (SC);
Fowler v New Zealand Insurance Co Ltd [1962] NZLR 947 (SC); and
Bennett v Percy [2020] NZFC
770.
6 Property
(Relationships) Act 1976, s 62(1)(b).
7 Property (Relationships) Act 1976, s
2 definition of “small estate”.
8 Property (Relationships) Act 1976, s
62(1)(a).
- However,
the partner can apply under the FPA for further provision from the estate
irrespective of which option they elect: Property
(Relationships) Act 1976, s
57.
- Property
(Relationships) Act 1976, s 62(2), but the application for extension must be
made before the final distribution of the estate:
s 62(4).
deemed to have chosen option B.11
Under section 69(2), a court may set aside a surviving partner’s
chosen option if satisfied that:
(a) the choice was not freely
made;
(b) the surviving partner did not fully understand the effect and
implications of the choice;
(c) since the choice was made the surviving partner has become aware of
information relevant to the making of the choice; or
(d) since the choice was made a third-party has made an application under the
TPA or FPA.
- 13.5 In all
cases, the court must be satisfied, having regard to all the circumstances, that
it would be unjust to enforce the choice.12
- 13.6 Section 47
of the Administration Act 1969 sets out the circumstances in which personal
representatives may distribute an estate
without facing liability to potential
claimants.13 The general rule is that
they may make distributions six months from the grant of administration,
provided they have not received
notice of a potential claim.14 Where a person of full legal
capacity has consented to the distribution, that person also loses the right to
bring an action against
the personal representative.15
- 13.7 A personal
representative will be protected when they make early distributions for the
maintenance, support or education of any
person partially or totally dependent
on the deceased immediately before the deceased’s death. Such
distributions may be made
even if the personal representative has notice of an
intended claim, and any distribution made for this purpose, if properly made,
cannot be later disturbed.16
- 13.8 In certain
circumstances, claimants may have the ability to “follow” the estate
property into the hands of a beneficiary
after distributions have already been
made.17 This process is set
out in sections 49–52 of the Administration Act. The court has
considerable discretion as to the form and
extent of the orders it may make. 18 It may require the transfer
or payment of any interest in any assets distributed, the payment of a sum not
exceeding the net value
of the assets at the date of distribution (with interest
if the court thinks equitable). A following order may be made against the
recipient of the distributed assets who received those assets otherwise than in
good faith and for full valuable consideration. The
court may make the following
order on terms and conditions that it thinks fit and may make any further orders
to give effect to the
following order.
11 Property
(Relationships) Act 1976, s 68.
12 Property (Relationships) Act 1976, s
69(2).
13 See also s 71(2) of the Property
(Relationships) Act 1976. Distribution is defined in s 46 of the Administration
Act 1969.
14 Administration Act 1969, s
47(4).
15 Administration Act 1969, s
47(3).
16 Administration Act 1969, s 47(2).
See s 47(1) for the relevant claims, which include the FPA, TPA and PRA.
- The
court may only make an order if there is nothing in any Act that prevents the
distribution from being disturbed: see for example
s 9(1) of the Family
Protection Act 1955; s 6 of the Law Reform (Testamentary Promises) Act 1949; and
s 47(2) of the Administration
Act
1969.
18 These are set out in
s 49(1) of the Administration Act 1969.
- 13.9 A following
order requires a separate court application to the substantive application under
the TPA and FPA, but this must also
be made within the same time limits for
making claims.19 The court
does not have the general power to grant an extension of time for the making of
a following order,20 but if
an applicant was not aware of the distribution at the time of filing a
substantive application, they may still make an application
for a following
order if they do so within six months of first becoming aware of the
distribution.21 Failure to
comply with that six-month time limit, however, is an absolute bar to following
the assets.22
Issues with time limits under the PRA, FPA and TPA
- 13.10 Six
months may be too short a timeframe to make an election under the PRA. In our
preliminary engagement, several individuals
described how, at times, partners
end up making hasty decisions under pressure and without full knowledge of the
estate. Partners
are not always aware of the time limits in the PRA and the
consequences of not electing in time.23
- 13.11 Most of
the reasons why a partner might seek to set aside their chosen option will fall
within the four circumstances listed
in section 69(2)(a) of the PRA. However,
even if the application is uncontested, the courts are confined to these
grounds. There
may be occasions beyond these circumstances where a court would
consider it unjust to enforce the chosen option.24
- 13.12 There
appears to be broad satisfaction with the 12-month time limit for commencing
proceedings under the Acts. However, in our
preliminary engagement, we heard
that the two-year timeframe for FPA claims on behalf of minors and those lacking
capacity can cause
problems because estates are often wound up in this
timeframe.
- 13.13 Several
issues may arise in respect of final distribution. Restricting a court’s
power to extend time limits or make other
orders 25 up to the point an estate has
been finally
- Administration
Act 1969, s 49(3). Note that s 49(3)(a) specifies that time period commences
from the date of the grant of administration
in Aotearoa New Zealand.
- Compare
the provisos in s 9 of the Family Protection Act 1955; and s 6 of the Law Reform
(Testamentary Promises) Act 1949. See Lapwood v Teirney [2012] NZHC 1803
at [10] and
[21].
21 Administration Act
1969, s 49(4).
- Re
Nicoll HC Tauranga M44/92, 13 August 1993. However, in Hodgkinson v
Holmes [2012] NZHC 2972 at [27] the Court suggested that an application made
outside the six-month period would not be barred if “final
distribution”
had not occurred. This was criticised by Bill Patterson in
Bill Patterson Law of Family Protection and Testamentary Promises
(LexisNexis NZ, Wellington, 2013) at [16.18].
- Nicola
Peart “Death and the Property (Relationships) Act 1976 – Options
other than Heaven and Hell” (paper presented
to New Zealand Law Society
PRA Intensive - keeping ahead of the pack 2020 Intensive Conference, Auckland,
26 June 2020) at 5. Peart
references several cases that suggest the lack of
understanding about the need to make an election to commence proceedings and
the
process for doing so: Bell v Ehlers FC Dunedin FAM-2008-012-122, 5
May 2009; McConkey v Clarke [2019] NZHC 2047; and Sands v Executor of
B O’Horgan Estate [2016] NZFC 8970.
- An
example of a case where the court dismissed the application to set aside option
B is Re Leenman; Mulder v Mulder [2009] NZFLR 727 (FC), where the
deceased’s partner of 37 years failed to establish any of the four
circumstances in s 69(2)(a). Note, however,
that there was no suggestion in that
case that the court would have come to a different conclusion had there been
broader grounds
available.
- For
example, under s 77 of the Property (Relationships) Act 1976 a court may permit
a surviving partner to take under the will or
on intestacy in addition to their
division under option A provided that the application to do so is made before
the final distribution
of the estate.
distributed provides certainty and protection for personal representatives and
beneficiaries. However, it can unfairly impact on
claimants with legitimate
claims. Claimants may be forced to bring claims against personal representatives
personally.26 It is also
confusing that what constitutes final distribution differs depending on the
statute and is not clearly defined in legislation.27 It is not always obvious to
interested parties when final distribution has occurred.
Issues with distribution
- 13.14 Our
preliminary engagement revealed mixed views about whether six months from the
grant of administration in Aotearoa New Zealand
is a suitable period to wait for
an estate to be distributed. The six-month period may be justified because it
allows claimants time
to find out about the estate and consider their options
while not excessively delaying distribution. However, issues can arise because
of the difference between a six-month hold for distribution and the general
12-month time limit for making claims. There may also
be occasions where a
personal representative wishes to distribute earlier than the six- month period.
At present, a personal representative
would make this decision after assessing
the risk of claims and obtaining indemnities from beneficiaries or other
potential claimants.28
- 13.15 There is
little case law available on section 47(2) regarding the protection of
distributions made to provide for maintenance,
support and education, and we are
unaware how frequently personal representatives rely on it. Personal
representatives could potentially
distribute property using the section 47(2)
power with the effect of leaving insufficient property to meet other claims
against the
estate.29
However, our preliminary engagement indicated that this had not been an
issue in practice.
- 13.16 Sections
49–52 of the Administration Act that deal with the following of assets are
difficult to understand and may cause
confusion.
Proposals for reform
- 13.17 Any
time limit must balance the need to avoid undue delay in the administration and
distribution of an estate with the need
to ensure that those with a genuine
claim have sufficient time to make it. The limitation periods should work
cohesively together
to the extent that is practicable.
Distribution
- 13.18 Our
preliminary view is that a personal representative should continue to be
protected against personal liability from claimants
under the new Act where the
personal representative distributes any part of the estate in the circumstances
prescribed in section
47 of the Administration Act (detailed above). While we
note the potential
- See
B v T [2015] NZHC 3174 as an example of a claim brought against personal
representatives in their personal capacity. Note, however, the personal
representative
will be protected from such claims where they have made
distributions in accordance with s 47 of the Administration Act
1969.
27 Noting that s 2(4) of
the Family Protection Act 1955 goes part way to explaining the definition under
that Act.
28 See s 47(3) of the Administration
Act 1969.
- Provided
that the distribution is made in accordance with any trust, power or authority
which is subsisting: see s 48(2) of the Administration
Act
1969.
problems with a personal representative’s power to distribute to the
deceased’s dependants for their maintenance, support
or education, we
think limits on this power or its repeal are not desirable reforms. We are
reassured that we have had no concerns
raised with us about this
provision.
Election to divide relationship property
- 13.19 Our
preliminary view is that there should not be a change to the time limits for
making an election to divide relationship property.
Under the new Act, a
surviving partner would continue to have six months from the grant of
administration in Aotearoa New Zealand
to make an election to divide
relationship property (option A) or to take under the will or intestacy regime
(option B). If a
surviving partner makes no election within that timeframe, they
should be treated as choosing option B, as currently provided under
the PRA. If
the estate can be lawfully distributed without a grant of administration, the
new Act should provide that the choice
should be made within the later
of:
(a) six months from the date of the deceased’s death;
or
(b) six months from the grant of administration in Aotearoa New Zealand (if
the grant is made within six months of the deceased’s
death).
- 13.20 Comparing
Aotearoa New Zealand to the Canadian jurisdictions that have a limitation period
for electing or applying to divide
relationship property, six months from the
grant of administration is typical.30 Extending the time limit
would not address concerns about lack of awareness and access to relevant
information. These may be addressed
by other measures including general
education (see Chapter 18), imposing on the personal representative a duty to
notify certain
parties of their rights to claim (see Chapter 16) and improved
guidance for personal representatives about the information that must
be
disclosed (see below).
- 13.21 To
commence proceedings for a division of relationship property, electing option A
should continue to be a prerequisite.31
- 13.22 We propose
that the court retains its power to set aside an election if it is satisfied
that it would be unjust to enforce the
choice, but our preliminary view is that
a court should not be confined to the grounds in section 69(2)(a) of the PRA
when deciding
whether to set aside a choice of option. However, we see value in
retaining these four circumstances in the new Act as guidance for
partners,
lawyers and judges.
- 13.23 A court
would continue to have the discretion to grant extensions prior to the final
distribution of the estate (discussed below).
- This
applies in Manitoba, Nova Scotia, Saskatchewan, Northwest Territories and
Nunavut: The Family Property Act CCSM 1987 c F25, s
29(1); Matrimonial Property
Act RSNS 1989 c 275, s 12(2); The Family Property Act SS 1997 c F-6.3, s 30(2);
Family Law Act SNWT 1997
c 18, s 37(7); and Family Law Act SNWT (Nu) 1997, c 18,
s 37(7). In New Brunswick, Ontario, and Newfoundland and Labrador, the
limitation
periods commence from the date of death, and are four months, six
months and one year, respectively: Marital Property Act RSNB 2012
c 107, s 4(3);
Family Law Act RSO 1990 c F.3, s 6(10); and Family Law Act RSNL 1990 c F-2, s
21(3).
31 Compare s 63 of the
Property (Relationships) Act 1976.
Time limit to bring claim
- 13.24 We
propose that proceedings for claims under the new Act should be commenced
within 12 months from the grant of administration
in Aotearoa New
Zealand.
- 13.25 For
decades, this has been the time period for FPA and TPA claims, and it
appears relatively uncontroversial. We anticipate
that 12 months would
generally be sufficient time for potential claimants under the new Act to
determine their eligibility and evaluate
their prospect of success. We note that
12 months is at the upper end of the limitation periods for family
provision-type claims
in comparable jurisdictions.32
- 13.26 We also
propose that claims relating to estates that can be lawfully distributed without
a grant of administration should be
made within the later of:
(a) 12
months from the date of the deceased’s death; or
(b) 12 months from the grant of administration in Aotearoa New Zealand (if
the grant is made within six months of the deceased’s
death).
- 13.27 There
should not be an extended limitation period for claims made on behalf of minors
or individuals without capacity. Because
estates may be distributed after six
months, our preliminary view is that there is no significant benefit in allowing
a two-year
limit for minors or those without capacity.
- 13.28 We propose
that courts retain their discretion to allow claims to be made beyond the
express time limits provided that the application
is made before final
distribution of the estate. However, we propose that final distribution is
defined in the new Act. Our preliminary
view is that, for the purposes of the
new Act, final distribution occurs when all estate assets are transferred to
those beneficially
entitled rather than when the personal representative has
finished their administrative duties and is holding the property on
trust.
DISCLOSURE OF INFORMATION
The
current law
- 13.29 Section
11A of the FPA provides that personal representatives have a duty to place
before the court all relevant information
in their possession concerning the
financial affairs of the estate and the deceased’s reasons for making the
dispositions made
by the will or for not making any further provision, as the
case may be. This duty to provide the court with relevant information
about the
deceased’s reasons will override any claim to legal privilege in the
context of a solicitor-client relationship.33 There is no equivalent
provision in the TPA. However, the same principle is treated as applying to
TPA proceedings.34
- For
example, in Victoria, Western Australia, South Australia and the Australian
Capital Territory, claimants have six months from
the grant of administration:
Administration and Probate Act 1958 (Vic), s 99; Family Provision Act 1972 (WA),
s 7(2); Inheritance (Family Provision) Act 1972 (SA), s 8; and Family Provision
Act 1969 (ACT), s 9. In Tasmania, it is only three months and in Northern
Territory it is 12 months: Testator’s Family Maintenance Act 1912 (Tas),
s
11; and Family Provision Act 1970 (NT), s 9. In Queensland and New South Wales
the limitation periods commence from the date of death and are nine and 12
months respectively:
Succession Act 1981 (Qld), s 41(8); and Succession Act 2006
(NSW), s
58(2).
33 Carmichael v
Goddard [1979] 2 NZLR 586 (SC); and Re Cross [1981] 2 NZLR 673
(HC).
34 Powell v Public Trustee
[2002] NZCA 276; [2003] 1 NZLR 381 (CA) at [27].
- 13.30 In Chapter
3, we discuss several specific rules relating to the classification of
relationship property, including the presumption
that all property owned by the
deceased partner or acquired by the estate is relationship property. 35 Those rules place an onus on
the personal representatives to disclose information if they want to resist a
finding that the property
of the estate is relationship property. No
corresponding rule applies to the property of the surviving partner.
- 13.31 Under both
the Family Court Rules and the High Court Rules, discovery is available to any
party who has filed a pleading in
respect of any of the Acts.36 Pre-action discovery orders
may also be available for intending claimants provided they have a strong
foundation for the order.37
The PRA review
- 13.32 In
the PRA review, the Commission observed that situations may arise where one
partner has greater knowledge of the couple’s
relationship property
affairs but refuses to make adequate disclosure, thereby putting the other
partner at a disadvantage.38
- 13.33 The
Commission made several recommendations aimed at encouraging a culture of
compliance with disclosure obligations when resolving
relationship property
matters in and out of court.39
These included recommending that:
(a) the new Relationship
Property Act include an express duty of disclosure on partners;
(b) new pre-action procedures include a prescribed process for complying
with the duty of disclosure prior to making an application
to te Kōti
Whanau | the Family Court (the Family Court); and
(c) new procedural rules include the procedure for initial and subsequent
disclosure in relationship property proceedings.40
Issues
- 13.34 In
our preliminary engagement, a concern was raised that it can be difficult for
potential claimants to obtain relevant information
needed to assess the
viability of the claim or to resolve that claim outside of court. We discuss
this issue in Chapter 14.
- 13.35 Obtaining
relevant information once a claim had been filed seems to be more
straightforward. However, issues arise about the
disclosure of irrelevant
information, particularly when affidavits and annexures total tens or hundreds
of pages or denigrate the
character and motives of another family member.41
35 Property
(Relationships) Act 1976, ss 81–82.
36 Family Court Rules 2002, r 141; and
High Court Rules 2016, rr 8.4–8.5.
37 Family Court Rules 2002, r 140; and
High Court Rules 2016, r 8.20. See also Moon v Lafferty [2020] NZHC 1652
at [27].
- Te
Aka Matua o te Ture | Law Commission Review of the Property (Relationships)
Act 1976 | Te Arotake i te Property (Relationships) Act 1976 (NZLC
R143, 2019) at [16.121].
- Te
Aka Matua o te Ture | Law Commission Review of the Property (Relationships)
Act 1976 | Te Arotake i te Property (Relationships) Act 1976 (NZLC
R143, 2019) at [16.141]
- Te
Aka Matua o te Ture | Law Commission Review of the Property (Relationships)
Act 1976 | Te Arotake i te Property (Relationships) Act 1976 (NZLC
R143, 2019) at R110–R111 and [16.142]–[16.146].
- See
Williams v Aucutt [2000] NZCA 289; [2000] 2 NZLR 479 (CA) at [71]; and Kirby v Sims
HC Wellington CIV-2010-485-1019, 22 August 2011 at
[65].
Proposals for reform
- 13.36 Our
preliminary view is that the new Act should include an express duty on the
personal representative to assist the court,
similar to that in section 11A of
the FPA. We propose that this would provide that a personal representative who
had received notice
of an application for an award under that Act would have an
obligation to place before the court all relevant information in the
personal
representative’s possession or knowledge concerning details
of:
(a) members of the deceased’s family;
(b) the financial affairs of the estate;
(c) persons who may be claimants under the Act; and
(d) the deceased’s reasons for making the testamentary dispositions and
for not making provision or further provision for any
person.
- 13.37 We also
propose that, in respect of relationship property claims, the surviving partner
and the personal representative should
have a duty to disclose each
partner’s assets and liabilities, and this should be expressed in the new
Act.
- 13.38 Our
preliminary view is that the quality and clarity of the information disclosed
may also be improved by updated affidavit
forms. For example, a form similar to
P(R) 1 Affidavit of Assets and Liabilities, which parties are required to file
in relationship
property proceedings,42 should be created for the
personal representative to complete when a family provision claim or
contribution claim is made. It should
include instructions about non-estate
property that needs to be disclosed. A form for an affidavit in support for each
of the claims
under the new Act could also be created with accompanying guidance
on relevant and non-relevant information.
- 13.39 We discuss
our proposed recommendations for pre-action procedural rules including the
process for disclosure of information
in Chapter 14.
EVIDENCE
The
current law
- 13.40 In FPA and
PRA proceedings, evidence is usually given by affidavit regardless of whether
they are in the Family Court or te
Kōti Matua | the High Court (the High
Court).43 In TPA proceedings,
affidavit evidence is preferred in the Family Court, whereas the presumption in
the High Court is that evidence
will be given orally unless the judge directs
otherwise.44 A commonly cited reason for
receiving evidence by way of affidavit in FPA claims is that the
deceased’s evidence cannot be
led or tested.45
42 Family Court Rules
2002, r 398.
43 Family Court Rules 2002, r 48; and
High Court Rules 2016, r 18.15(1).
44 High Court Rules 2016, r
18.15(2)(a).
- John
Caldwell Family Law Service (NZ) (online looseleaf ed, LexisNexis) at
[7.913], citing Re Munro (dec’d) DC Waitakere 760/99, 19 October
2000 at 11; and Re Darby (dec’d) FC Christchurch FP 1427/98, 8
August 2000 at 16.
- 13.41 Under the
FPA and PRA, cross-examination is allowed in exceptional circumstances where
allegations are specific and serious.
46 It is discouraged,
particularly where it is sought by family members as a means of blackening each
other’s character.47
Affidavits in reply may also be made but must not introduce new
matters.48
- 13.42 Section 11
of the FPA provides that the court can hear reasons for dispositions or for
leaving someone out of the will, whether
that evidence would be otherwise
admissible in court or not.
Issues
- 13.43 It
is unclear why, for TPA proceedings, affidavit evidence would be suitable in the
Family Court but not suitable in the High
Court.49
Proposals for reform
- 13.44 Our
preliminary view is that, unless a judge directs otherwise, affidavit evidence
should be preferred for all claims under
the new Act irrespective of which court
the proceeding is commenced in.50
REPRESENTATION OF MINORS AND PERSONS LACKING CAPACITY
The
current law
- 13.45 Section
4(4) of the FPA states that an administrator of the estate may apply for further
provision from the estate on behalf
of a person who is not of full age or mental
capacity. They may also apply to the court for advice or directions as to
whether
they ought to apply.
- 13.46 Section
37A of the PRA allows the court to appoint a lawyer to represent any minor or
dependent child of the relationship if
there are special circumstances that make
the appointment necessary or desirable.
- 13.47 In
proceedings under the FPA or the TPA, both the Family Court and the High Court
may also make representation orders for minors
or people who lack capacity.51 The appointed party may be
the personal representative, counsel, a litigation guardian or Public
Trust.
- 13.48 When a
claimant files for directions as to service, they also apply for orders of
representation that might be required. At
least in the Family Court, it is
customary for the claimant to obtain and file the consent of counsel whom it is
requested be appointed
to
46 See for example
Willis v Fredson [2013] NZFC 4742.
47 Re Meier (deceased) [1976] 1
NZLR 257 (SC).
48 Family Court Rules 2002, r 158; and
High Court Rules 2016, r 9.76.
49 See Bill Patterson Law of Family
Protection and Testamentary Promises (4th ed, LexisNexis, 2013) at 306.
50 See Family Court Rules 2002, r 48;
and High Court Rules 2016, r 18.15(1).
- Family
Court Rules 2002, r 382; and High Court Rules 2016, r 4.27. In the Family Court,
these orders can be made without the appointment
of a litigation guardian or
next friend for the minor or incapacitated person, which are governed by rr 90B,
90C, 90D and 90F: Family
Court Rules 2002, r 382(2). In the High Court, these
orders can occur at the request of a party or intending party, or on the
court’s own initiative: High Court Rules 2016, r 4.27; and see also rr
4.35 and 18.8.
represent them.52 This
generally means that the claimant is expected to find a lawyer to represent the
minor child with the hope that the lawyer will
get paid from the
estate.
- 13.49 Article 12
of the United Nations Convention on the Rights of the Child provides that
children are given the right to freely
express their views in all matters that
affect them and to have their views given due weight in accordance with their
age and maturity.
This includes their right to be heard in any judicial and
administrative proceedings affecting the child, either directly or through
a
representative or an appropriate body, in a manner consistent with the
procedural rules of national law.
Issues
- 13.50 When
FPA claims are made on behalf of minor children, these are generally brought by
the child’s guardian, and it appears
to be uncommon for minor children to
take an active role in proceedings that directly or indirectly affect them.
Similarly, in the
Commission’s review of the PRA, we observed that
“it is unusual for children to participate in relationship property
proceedings or for a lawyer for child to be appointed.”53
- 13.51 Personal
representatives are not under a general duty to initiate FPA applications.
However, te Kōti Pīra | the Court
of Appeal stated in Re Magson
that, in a clear case, a duty would apply. 54 Although section 4(4) states
that a personal representative may apply on behalf of any person not of full age
or mental capacity,
it fails to provide any guidance about when personal
representatives should make such an application.
The PRA review
- 13.52 The
Commission made several recommendations in the PRA review aimed to give greater
priority to children’s best interests
following parental separation, which
we considered should be a primary consideration in the new Relationship Property
Act.55 This included the
recommendation that the Government consider ways to strengthen child
participation in relationship property proceedings
in any work undertaken in
response to the recommendations of the Independent Panel appointed to examine
the 2014 family justice reforms.56
Proposals for reform
- 13.53 Our
preliminary view is that the primary responsibility to bring a family provision
claim on behalf of a minor child should
lie with the child’s parent or
guardian. We suggest that a welfare guardian would also take this primary
responsibility for
an adult lacking capacity.
52 Family Court
Caseflow Management Practice Note (March 2011) at [9.6].
- Te
Aka Matua o te Ture | Law Commission Review of the Property (Relationships)
Act 1976 | Te Arotake i te Property (Relationships) Act 1976 (NZLC
R143, 2019) at
[12.23].
54 Re Magson
[1983] NZLR 592 (CA) at 599.
- Te
Aka Matua o te Ture | Law Commission Review of the Property (Relationships)
Act 1976 | Te Arotake i te Property (Relationships) Act 1976 (NZLC
R143, 2019) at R67–R72.
- Te
Aka Matua o te Ture | Law Commission Review of the Property (Relationships)
Act 1976 | Te Arotake i te Property (Relationships) Act 1976 (NZLC
R143, 2019) at R71.
- 13.54 We
therefore propose that section 4(4) of the FPA should be repealed. In its place,
we propose that personal representatives
should have a statutory duty to notify
potential claimants of their rights under the new Act and to provide them with
information
about the claims, relevant time limits and obtaining independent
legal advice. We discuss this duty further in Chapter 16.
- 13.55 In respect
of out-of-court dispute resolution processes, our preliminary view is that, when
any minor child, person lacking
capacity or unascertained party wishes to claim
or may be affected by a claim under the new Act, the court must appoint a
representative
for that party.57
We discuss this process further in Chapter 14.
- 13.56 Our
preliminary view is that the same requirement should apply to court proceedings.
These representation orders should be made
at the time of giving directions of
service. It appears that both the Family Court and the High Court’s
existing powers would
be sufficient to enable these representation orders to be
made.
- 13.57 Tāhū
o te Ture | Ministry of Justice has an ongoing programme of work focused on
enhancing children’s participation
in Family Court proceedings.58 Our preliminary view is
that this work programme should include participation in proceedings under the
new Act.
COSTS
The
current law
- 13.58 Costs are
at the discretion of the court.59
Historically, it was common in FPA proceedings for the court to order that
costs be paid from the estate.60
We understand that it is now usual in claims against an estate for costs
to follow the event (that is to be awarded in favour of the
successful party).61 However, the court may
consider the family context of proceedings and be reluctant to exacerbate family
rifts by personal costs orders.62
- 13.59 Reprehensible
conduct in the course of proceedings that causes delay and expense may be
reflected in costs.63
- 13.60 A personal
representative’s full costs will generally be paid by the estate unless
the personal representative has acted
unreasonably.64
57 Compare s 144 of the
Trusts Act 2019.
- See
for example Tāhū o te Ture | Ministry of Justice Regulatory Impact
Assessment: Strengthening the Family Court – First stage initiatives to
enhance child and whānau wellbeing
(14 May 2020).
- Family
Court Rules 2002, r 207(1); and High Court Rules 2016, r 14.1(1). In exercising
its discretion as to costs, the Family Court
may apply rr 14.2–14.12 of
the District Court Rules 2014 so far as applicable and with all necessary
modifications. These rules
are largely the same as the High Court Rules 2016.
Where costs are ordered by the court, these are allocated according to
the civil scale of costs in schs 4 and 5 of the District Court Rules 2014
and schs 2 and 3 of the High Court Rules
2016.
60 Keelan v Peach
[Costs] [2003] NZCA 342; [2003] NZFLR 727 (CA) at [7]; and Fry v Fry [2015] NZHC 2716,
[2016] NZFLR 713 at [12].
61 Fry v Fry [2015] NZHC 2716,
[2016] NZFLR 713 at [17].
62 Ware v Reid [2019] NZHC 1706
at [53]; and Keelan v Peach [Costs] [2003] NZCA 342; [2003] NZFLR 727 (CA) at [7].
- See
for example Powell v Public Trustee [2002] NZCA 276; [2003] 1 NZLR 381 (CA). See also
District Court Rules 2014, rr 14.6 and 14.7; and High Court Rules 2016, rr 14.6
and 14.77.
64 Fry v Fry
[2015] NZHC 2716, [2016] NZFLR 713 at [17].
The PRA review
- 13.61 In
the PRA review, the Commission stated that it is appropriate as a general
principle that costs in PRA proceedings lie where
they fall because of the
distinctive characteristics of such proceedings.65 It would reflect the
semi-inquisitorial nature taken by the Family Court in relationship property
proceedings and recognise that
the nature of those disputes means that each
partner will have “successes” and both partners will benefit from
resolution.
- 13.62 A common
feature the Commission noted in disputes about relationship property on
separation was intentional tactics to delay
or disrupt proceedings. The
Commission recommended:
(a) a new Relationship Property Act should
make express provision for the Family Court to impose costs and other
consequences for
non-compliance with procedural requirements;
(b) new procedural rules and guidance should be issued addressing the
imposition of costs and other consequences of non-compliance
with procedural
requirements as well as the exercise of the Court’s discretion to make
costs orders that are not for the purpose
of penalising non-compliance; and
(c) the establishment of a separate scale of costs for relationship property
proceedings because of their distinctive characteristics.66
Issues
- 13.63 Commentators
do not identify any significant problems with the current costs regime. The
previously common approach of ordering
costs to be paid from the estate has been
criticised for potentially encouraging unmeritorious claims and at times
exhausting smaller
estates.67
There appears to be broad satisfaction now with the courts’ flexible
approach and the move towards general cost principles under
the court
rules.
Proposals for reform
- 13.64 We
propose no change to the general rule that a court has discretion to order
costs against parties as it sees fit, following
general cost principles.
- 13.65 We agree
that it is preferable that courts have moved away from the general presumption
that costs are borne by the estate.
Our preliminary view is that, in
relationship property proceedings on death, it will often be appropriate for
costs to lie where
they fall, for the same reasons that the Commission gave for
proceedings for relationship property division on separation. Frequently,
these
proceedings will be about
- Te
Aka Matua o te Ture | Law Commission Review of the Property (Relationships)
Act 1976 | Te Arotake i te Property (Relationships) Act 1976 (NZLC
R143, 2019) at [16.111]. The distinctive characteristics of relationship
property proceedings are discussed in that report
at [16.70].
- Te
Aka Matua o te Ture | Law Commission Review of the Property (Relationships)
Act 1976 | Te Arotake i te Property (Relationships) Act 1976 (NZLC
R143, 2019) at R105–R107 and [16.110]–[16.111].
- See
Fry v Fry [2015] NZHC 2716, [2016] NZFLR 713 at [13]; Nicola Peart (ed)
Family Property (online looseleaf ed, Thomson Reuters) at [FP5.02]; Greg
Kelly “An Inheritance Code for New Zealand” (LLM Dissertation,
Te
Herenga Waka
| Victoria University of Wellington, 2010) at 20.
the classification of relationship property and there will not be
“successes” as in other civil proceedings. For
family provision
and contribution claims, it may be more common for costs to be paid by the
unsuccessful party following the
proceeding. Flexibility will be particularly
important in proceedings that consider multiple different
claims.
- 13.66 Our
preliminary view is that the new Act should contain a provision expressly
referring to the court’s power to make
cost orders as it thinks fit. 68 Our preliminary view is
the provision should expressly refer to the court’s ability to impose
costs for non-compliance with
procedural requirements.69 This would signal to parties
what is expected of them, although our understanding is that this is less of
an issue for claims against
estates than it is for relationship property
claims on separation.
- 13.67 We are
also considering whether establishing a separate scale of costs would be
justifiable for any of the claims under the
new Act. While we are not aware of
any concerns that the current scales are not adequate, many of the distinctive
characteristics
of relationship property proceedings on separation are shared
with the claims under the new Act and therefore may better suit a scale
developed for that purpose.
DELAYS IN THE FAMILY COURT
- 13.68 The
Independent Panel examining the 2014 family justice reforms reported that delay
in the Family Court impacted on almost every
other issue in family justice
services.70 In the PRA review, the
Commission identified that a key issue with the procedure governing proceedings
under the PRA was the delays
experienced in the Family Court. 71 The Commission observed that,
in 2015, half of the cases that proceeded to a hearing took more than two years
from filing to disposal.72
- 13.69 On
average, TPA and FPA cases take more than 60 weeks from filing to disposal in
the Family Court,73
significantly longer than the intended 26 weeks.74
The PRA review
- 13.70 In
the PRA review, the Commission explained that the delays in relationship
property proceedings were attributable to multiple
factors. These included the
complex legal and
68 Compare s 40 of the
Property (Relationships) Act 1976.
- See
also Te Aka Matua o te Ture | Law Commission Review of the Property
(Relationships) Act 1976 | Te Arotake i te Property (Relationships) Act
1976 (NZLC R143, 2019) at R105.
- Rosslyn
Noonan, La-Verne King and Chris Dellabarca Te Korowai Ture
ā-Whānau: The final report of the Independent Panel examining the 2014
family justice reforms (Tāhū o te Ture | Ministry of Justice, May
2019) at 7.
- Te
Aka Matua o te Ture | Law Commission Review of the Property (Relationships)
Act 1976 | Te Arotake i te Property (Relationships) Act 1976 (NZLC
R143, 2019) at [16.69]–[16.70].
- Based
on data provided to the Commission by email from Tāhū o te Ture |
Ministry of Justice to Te Aka Matua o te Ture |
Law Commission (16 September
2016): see discussion in Te Aka Matua o te Ture | Law Commission Dividing
relationship property – time for change? Te mātatoha rawa tokorau
– Kua eke te wā? (NZLC IP41, 2017) at [25.24].
- The
average age of the TPA and FPA cases disposed of by te Kōti Whānau |
the Family Court between 2009 and 2019, was 450
days (64.3 weeks) and 440 days
(62.9 weeks) respectively: email from Tāhū o te Ture | Ministry of
Justice to Te Aka Matua
o te Ture | Law Commission regarding annual court data
(13 February 2020).
- The
Family Court’s Caseflow Management Practice Note, last updated in
2011, states that FPA, TPA and PRA cases should be disposed of within 26 weeks
of filing: Family Court Caseflow Management Practice Note (March 2011) at
[9.1].
factual issues that arise about property, the emotional component of separating
partners and the lack of a structured case management
process with prescribed
timeframes.75
- 13.71 The
Commission recommended that a Family Court Rules Committee should be established
for the purpose of developing new procedural
rules for relationship property
matters to be included as a sub-part of the Family Court Rules 2002 and issuing
guidance on the rules
as required. The Commission made several other
recommendations, including:76
(a) the new procedural rules
should include case management procedures tailored to the needs of relationship
property proceedings;
(b) the Family Court should have broad powers to appoint a person to make an
inquiry into any matter that would assist the Court to
deal effectively with the
matters before it; and
(c) the Government should collect data on the progress and resolution of
relationship property proceedings in the Family Court in
order to monitor
whether the Family Court is adequately resourced to deal appropriately with
relationship property proceedings.
Issues
- 13.72 In
our early engagement, several practitioners raised general concerns about delays
in the Family Court, but we did not receive
concerns specific to the claims in
question, nor did we hear that tactics are used to delay proceedings. It was
suggested by some
that delay may be useful in some estate disputes as it allows
the deceased’s friends and family time to grieve and heightened
emotions
to settle.
- 13.73 However, a
year or more to resolve a dispute may be a long time for families. Delays can
have significant consequences for beneficiaries
who cannot access some or all
the estate property during that time, especially those who had relied on the
deceased for support during
their lifetime.
Proposals for reform
- 13.74 Our
proposals for reform of the substantive law may reduce delays. Establishing a
single cause of action in the place of the
TPA and other equitable remedies
should reduce time spent on multiple causes of action for the same fundamental
purpose (see Chapter
5). Most of the FPA claims that reach court are brought by
the deceased’s independent adult children, and our proposals either
exclude or severely restrict the awards they could seek (see Chapter 4).
- 13.75 It is not
obvious to us that any specific procedural reform is necessary to address the
general issue of delays in the Family
Court. Our preliminary view is that any
Rules Committee established as per the Commission’s recommendations in the
PRA review
should consider whether to develop rules in respect of claims under
the new Act.
- Te
Aka Matua o te Ture | Law Commission Review of the Property (Relationships)
Act 1976 | Te Arotake i te Property (Relationships) Act 1976 (NZLC
R143, 2019) at [16.70]–[16.71].
- For
a full list of these recommendations see Te Aka Matua o te Ture | Law Commission
Review of the Property (Relationships) Act 1976 | Te Arotake i te
Property (Relationships) Act 1976 (NZLC R143, 2019) at R102–R109 and
[16.99]– [16.113]. We discuss several of the recommendations in the
section in this
chapter on costs.
SUMMARY OF PROPOSALS FOR REFORM
- Personal
representatives should continue to be protected against personal liability
from claimants under the new Act where the personal representatives
distribute any part of the estate in the circumstances prescribed
in section 47
of the Administration Act.
- No change
is recommended to the time limits for surviving partners to choose whether
to divide relationship property, but a court should have greater flexibility
when deciding whether to set aside a choice of option.
- Proceedings
for all claims under the new Act should be commenced within 12 months
from the grant of administration in Aotearoa New Zealand. If the estate does not
require formal administration this should be the
later of 12 months from the
date of the deceased’s death or 12 months from the grant of
administration in Aotearoa New
Zealand (if the grant is made within six
months of the deceased’s death).
- Courts
should retain their discretion to grant extensions of time where the
application is made before final distribution of the estate. A final
distribution should be defined in the new Act for these purposes to
mean the
point in time when all estate assets are transferred to those beneficially
entitled.
- The new Act
should expressly require personal representatives to place before the
court relevant information in their knowledge or possession.
- In respect
of relationship property claims, the new Act should expressly require that
surviving partners and personal representatives have a duty to disclose each
partner’s assets and liabilities.
- Updated
affidavit forms should be created for proceedings under the new Act.
- Affidavit
evidence should be preferred for all claims under the new Act irrespective
of whether they are commenced in the Family Court or the High Court.
- The court
should appoint a representative for any minor child, person lacking
capacity or unascertained party that wishes to claim or may be affected by
a claim under the new Act.
- Section
4(4) of the FPA should be repealed, and in its place there should be a
requirement that personal representatives notify potential claimants of relevant
information related to their rights under the new
Act.
- A court
should continue to have discretion to make cost orders as it thinks
fit.
- The new Act
should expressly refer to the court’s ability to impose costs for
non- compliance with procedural requirements.
- Consideration
is also given to whether claims under the new Act would justify a separate
scale of costs.
- Any Rules
Committee established as recommended in the PRA review should consider
whether to develop rules in respect of claims under the new
Act.
QUESTIONS
|
|
Q68
|
Do you agree with the issues we have identified?
|
|
Q69
|
Are there other issues with the law we have not identified?
|
|
Q70
|
What are your views on the proposals for reform?
|
|
Q71
|
Do you have
|
any other suggestions for reform?
|
|
CHAPTER 14
Resolving
disputes out of court
IN THIS CHAPTER, WE CONSIDER:
- ways in which
parties can resolve a dispute without going through a court hearing;
- the law that
applies to resolving disputes out of court; and
- issues with the
current law and proposals for reform.
THE CURRENT LAW
- 14.1 A
significant proportion of claims against estates are resolved out of court.
There are good reasons to promote the resolution
of matters outside of court. It
is generally quicker and less expensive. It can result in better outcomes for
families involved because
resolution processes can focus on reaching agreement
rather than adversarial court proceedings.
- 14.2 The most
common ways of resolving disputed claims against estates out of court
are:
(a) party or lawyer-led negotiation;
(b) mediation;
(c) arbitration; and
(d) judicial settlement conferences.
- 14.3 We
understand that resolutions reached by negotiation or mediation are often
concluded by the parties entering a deed of family
arrangement. In judicial
settlement conferences, the presiding judge may make consent orders confirming
the resolution reached.
1 A
consent order made at a settlement conference has the same effect as if it
were made with the consent of the parties in proceedings
in a court.2 Arbitrations are concluded
by
1 Family Court Rules 2002,
r 179(1).
2 Family Court Rules 2002, r
179(3)(a).
the arbitrator’s decision. However, the parties must first have entered an
arbitration agreement through which they agree to
be bound by the
decision.
- 14.4 The Trusts
Act 2019 allows for alternative dispute resolution procedures. 3 The Act provides that the
trustees or the court may refer a matter to an “ADR process”, even
if there is no provision
in the terms of the trust that would allow for an
alternative dispute resolution process.4 The matter may include legal
proceedings or a dispute that may give rise to legal proceedings.5
- 14.5 If a matter
is “internal”, meaning it is a matter to which the only parties are
the trustees or beneficiaries, the
matter can be referred to ADR even if there
are beneficiaries who are unascertained, are minors or lack capacity. The court
must
appoint a representative who must act in the best interests of those
beneficiaries.6 The
representative may agree to an ADR settlement on behalf of those beneficiaries,
including an arbitration agreement and any arbitral
award under that
agreement.7 Except in
relation to arbitral awards, the court must approve an ADR settlement in order
for it to take effect.
RECOMMENDATIONS IN THE PRA REVIEW
- 14.6 In
the PRA review, we recommended measures to support out-of-court resolution. We
said parties should have adequate information
about the property sharing regime
and options for resolving relationship property matters and have access to
affordable legal advice.8
Such an approach would promote the speedy, simple and inexpensive
resolution of PRA matters. We recommended too that voluntary out-of-court
dispute resolution for relationship property matters should be promoted by:9
(a) including in the
recommended new Relationship Property Act an endorsement of voluntary
out-of-court dispute resolution to resolve
relationship property matters;
(b) introducing new pre-action procedures in the Family Court Rules 2002
that will provide a clear process for partners to follow
when attempting to
resolve relationship property matters out of court; and
(c) requiring applicants to court to acknowledge in court application forms
that they have received information about the pre-action
procedures and the
availability of dispute resolution services.
- The
Trusts Act 2019 applies to all express trusts governed by New Zealand law, such
as trusts created by wills and statutory trusts
under the intestacy regime:
Trusts Act 2019, s 5. It also applies to the duties incidental to the office of
administrator under the
Administration Act 1969: Trusts Act 2019, sch 4 pt
1.
4 Trusts Act 2019, s
143.
5 Trusts Act 2019, s 142.
6 Trusts Act 2019, s 144(2)(a).
7 Trusts Act 2019, s 144(1)(b).
- Te
Aka Matua o te Ture | Law Commission Review of the Property (Relationships)
Act 1976 | Te Arotake i te Property (Relationships) Act 1976 (NZLC
R143, 2019) at R96–R99 and [16.7]–[16.32].
- Te
Aka Matua o te Ture | Law Commission Review of the Property (Relationships)
Act 1976 | Te Arotake i te Property (Relationships) Act 1976 (NZLC
R143, 2019) at R100.
ISSUES
The
legality of some out-of-court settlements is unclear
- 14.7 In Chapter
11, we discuss the legality of agreements that purport to settle claims against
an estate. To summarise:
(a) A surviving partner may enter an
agreement under Part 6 of the PRA with the personal representative of the estate
to resolve relationship
property matters.10
(b) The courts have held that agreements through which parties purport to
settle Family Protection Act 1955 claims are not binding
on grounds of public
policy.11 It is unclear
whether the courts would continue to uphold this rule if the issue arose in
proceedings.12 We understand
that parties will frequently settle claims by entering deeds of family
arrangement.
(c) It appears that parties can settle Law Reform (Testamentary Promises) Act
1949 claims by agreement.
(d) The Arbitration Act 1996 provides generally that “any
dispute” can be arbitrated unless the arbitration agreement
is
“contrary to public policy” or “under any other law, such a
dispute is not capable of determination by arbitration”.13 We have found no case that
has considered a relationship property arbitration award in Aotearoa New
Zealand, although some commentators
have argued the agreement would be binding
if it conformed to the contracting out requirements under Part 6 of the PRA.14
- 14.8 As a result
of this law, it is unclear whether parties are able to comprehensively settle
claims without going to court.
Out-of-court resolution and parties who are unascertained,
minors or people who lack capacity
- 14.9 A
key question concerning out-of-court resolution is whether court involvement is
needed when the parties involved are unascertained
(such as beneficiaries yet to
be born), minors or people who lack capacity. These parties may be beneficiaries
of the estate and/or
claimants under the new Act. If out-of-court resolution is
to continue to be available under the new Act there is a question as to
how the
interests of such parties should be protected. As noted, the Trusts Act sets out
procedures for ADR processes concerning
internal matters when beneficiaries are
involved who are unascertained, minor or lack capacity.
10 Property
(Relationships) Act 1976, s 21B.
11 Hooker v Guardian Trust &
Executors Co of New Zealand [1927] GLR 536 (SC).
- Bill
Patterson has argued that if the issue came before the courts today, they would
likely hold such deeds of family arrangements
are enforceable: see Bill
Patterson Law of Family Protection and Testamentary Promises (4th ed,
LexisNexis, 2013) at 106–107. Note too s 47(3) of the Administration Act
1969, which provides that claimants
cannot bring an action against an
administrator for distributing an estate when they have, in writing, consented
to the distribution
or acknowledged they do not intend to make an application
that would affect the
distribution.
13 Arbitration
Act 1996, s 10(1).
- See
Robert Fisher “Relationship property arbitration” (2014) 8 NZFLJ 15
at 16; and Regan Nathan “Another tool in the kete? – relationship
property arbitration in New Zealand” (2020) 10 NZFLJ 47 at
47–48.
Should pre-action procedures be contemplated for claims against
estates?
- 14.10 Potential
claimants sometimes experience difficulties obtaining the relevant information
needed to assess the viability of a
claim or to resolve that claim. Those who
are not already beneficiaries under the will often have the most difficulty.
During
our preliminary engagement, we heard that accessing the will itself can
be complicated, often only being provided once probate is
granted and the will
becomes a public record.
- 14.11 In the PRA
review, we recommended the introduction of new “pre-action
procedures” for relationship property matters.
15 Parties would need to comply
with the pre-action procedures, unless there are good reasons not to, to equip
them for out-of-court
resolution and help avoid procedural issues like
inadequate disclosure of information. We recommended pre-action procedures
should
cover:
(a) giving notice to the other party of an intention
to engage in out-of-court dispute resolution to resolve a relationship property
dispute, which would provide an opportunity to put the parties on notice of
their disclosure obligations and of other matters such
as the prohibition on
disposing of family chattels without the other partner’s consent;
(b) the process for disclosure; and
(c) participation in out-of-court dispute resolution, such as negotiation,
counselling, mediation, arbitration and other recognised
dispute resolution
methods.
- 14.12 Given our
recommendation in the PRA review to introduce pre-action procedures to
relationship property matters, a question arises
as to whether they should be
introduced for claims against an estate.
PROPOSALS FOR REFORM
Legality
of out-of-court resolution should be clarified in the new Act
- 14.13 Consistent
with our proposals for contracting out and settlement agreements in Chapter
11, we present an option for reform
that adult parties, who are capable of
looking after their affairs and informed of their rights, should be able to
settle their
claims out of court. This should be expressly provided for in the
new Act to clarify that court involvement will not be required
to vary the
distribution of an estate under the terms of a will or intestacy, provided that
the parties comply with any procedural
requirements for entering settlement
agreements proposed in Chapter 11.
- 14.14 We do not
propose that the new Act require parties to participate in out-of-court
resolution. However, out-of-court resolution
may be particularly beneficial for
the types of family disputes that would arise under the new Act. A process that
allows the parties
to arrive at an agreed settlement may be more helpful at
diffusing family hostilities than an adversarial court process. Out-of-court
resolution processes may also allow other family matters to be addressed that
may not be strictly relevant to the legal issues before
- Te
Aka Matua o te Ture | Law Commission Review of the Property (Relationships)
Act 1976 | Te Arotake i te Property (Relationships) Act 1976 (NZLC
R143, 2019) at [16.54]–[16.55].
the court. For these reasons, we consider there should be a statutory
endorsement of out-of-court resolution in the new Act (as also
recommended in
the PRA review).16
The new Act should prescribe a process for out-of-court
resolution involving parties who are unascertained, minors or persons lacking
capacity
- 14.15 We
propose that a process consistent with the alternative dispute resolution
provisions of the Trusts Act should apply. The
court should appoint
representatives for parties who are unascertained (such as beneficiaries yet to
be born), minors or persons
who lack capacity when:
(a) a person
makes a claim against an estate under the new Act that may affect the interests
of any parties who are unascertained,
minors or persons who lack capacity;
or
(b) any minor or person who lacks capacity wishes to bring a claim under the
new Act.17
- 14.16 A
representative should be able to agree to participate in an out-of-court
resolution process and agree to any settlement reached.
The representative
should act in the best interests of the parties they represent.
- 14.17 We propose
the court should be required to approve any settlement that involves
unascertained parties, minors or persons who
lack capacity. It should also be
able to vary or set aside any agreement that would cause serious injustice.
- 14.18 For
arbitrations, our preliminary view is the same process should apply.
Representatives should be appointed for unascertained,
minor or parties who lack
capacity. Court scrutiny of the arbitral award, however, should not be required,
as is the case under the
Trusts Act.
Pre-action procedures
- 14.19 We
have heard that the introduction of pre-action procedures, like those
recommended in the PRA review, could be beneficial
in addressing issues such
as:
(a) parties being evasive about participating in settlement
discussions unless the court is involved;
(b) parties failing to disclose information; and
(c) parties being locked into “litigation mode”.
- 14.20 We
therefore propose that parties to a dispute governed by the new Act should be
required to follow pre-action procedural rules.
The procedures should
cover:
(a) giving notice to other parties of an intention to engage
in out-of-court dispute resolution;
- Te
Aka Matua o te Ture | Law Commission Review of the Property (Relationships)
Act 1976 | Te Arotake i te Property (Relationships) Act 1976 (NZLC
R143, 2019) at R100 and [16.53].
- We
do not consider unascertained parties would be able to bring a claim under the
new Act. In Chapter 4 we propose that the only unborn
children eligible to claim
a family provision award should be unborn children in utero prior to the expiry
of a limitation period.
Children who may be born in the future, but were not in
utero prior to the expiry of the limitation period, would not be
eligible.
QUESTIONS
(b) the requirement to make arrangements for the representation
of parties who are unascertained, minors or persons who lack capacity;
(c) the process for disclosure of information, including initial disclosure
obligations; and
(d) information about participation in out-of-court dispute resolution,
such as negotiation, counselling, mediation, arbitration
and other recognised
dispute resolution services.
- 14.21 These
procedures could be set by a Family Court Rules Committee that we recommended be
established in the PRA review and, for
the High Court, by the High Court Rules
Committee.18
SUMMARY OF PROPOSALS FOR REFORM
- The
new Act should expressly confirm and endorse the ability of parties to
resolve disputes out of court.
- The new Act
should prescribe a process for out-of-court dispute resolution that
involves parties who are unascertained, minors or persons who lack
capacity.
- Parties in
disputes should be required to follow pre-action procedures.
|
|
Q72
|
Do you agree with the issues we have identified?
|
|
Q73
|
Are there other issues with the law we have not identified?
|
|
Q74
|
What are your views on the proposals for reform?
|
|
Q75
|
Do you have
|
any other suggestions for reform?
|
|
- Te
Aka Matua o te Ture | Law Commission Review of the Property (Relationships)
Act 1976 | Te Arotake i te Property (Relationships) Act 1976 (NZLC
R143, 2019) at R102 and [16.56].
CHAPTER 15
Tikanga
Māori and resolution of succession disputes
IN THIS CHAPTER, WE CONSIDER:
- tikanga
Māori and dispute resolution; and
- current and
other potential options for resolving succession disputes.
INTRODUCTION
- 15.1 This
chapter explores dispute resolution and tikanga Māori for succession
disputes. By their nature, succession disputes
will mostly be within whānau
and hapū (kin groups), and this is likely to affect the way in which
disputes are best resolved.
Consideration of dispute resolution options may also
be affected by the earlier discussions in Chapters 2, 7 and 8.
- 15.2 Dispute
resolution was mentioned frequently in our preliminary consultation, sometimes
in relation to whenua Māori and sometimes
more generally in relation to
succession. We were told that whānau hui are regularly used to resolve
disputes. This was felt
to be appropriate given that tikanga is practised by
whānau, and this also allows for the tikanga of that whānau to be
applied. There was a desire by some for the resolution of disputes to be led by
Māori communities rather than by lawyers and
judges. This would mean
resolution processes other than those on the marae should also be available to
Māori. Others felt that
te Kooti Māori | the Māori Land Court
(the Māori Land Court) could facilitate dispute resolution by whānau
through
contributing appropriately skilled people as mediators and possibly as a
decision maker of last resort. Better access to information
about law and
processes relating to succession was also identified as likely to make dispute
resolution easier and quicker.
MĀORI DISPUTE RESOLUTION
- 15.3 The
norms of tikanga Māori promote wellbeing and balance between all aspects of
the human, natural and spiritual worlds.1 Māori dispute resolution
is primarily concerned with maintaining this state of wellbeing and balance.2
- 15.4 The
application of tikanga to social relationships leads to conflict management
processes that differ from prevalent Western
ways of viewing and solving
conflict.3 However,
Māori decision-making processes are not easily reduced into detailed
rules.4
- 15.5 Instead
mana and tapu dictate the cause and consequences of disputes within te ao
Māori. 5 Utu is the
primary mechanism by which upsets in mana or tapu are rectified. Resolution
might be achieved through kōrero (dialogue),
hui (meeting), whakamā
(shame, embarrassment), rāhui (prohibition), and many other methods
besides.6
- 15.6 Suitable
resolution methods are decided and acted upon according to various factors,
including the relationships involved and
the tikanga that were transgressed. 7 The dispute resolution process
is thus fluid and might incorporate several methods and principles in order to
reach a solution.8 This might
be contrasted with Pākehā methods where, for example, the parties may
contractually bind themselves to a particular
process before a dispute has even
arisen.9
- 15.7 Associate
Professor Khylee Quince has discussed the importance of rangatira (chiefs or
leaders) in the resolution of disputes.10 Rangatira are widely regarded
as carrying the mana of their people and demonstrate this through actions and
words that strengthen
the cohesiveness of the group. Three principles are
employed to achieve this: aroha, the
- Khylee
Quince “Māori Disputes and Their Resolution” in Peter Spiller
(ed) Dispute Resolution in New Zealand (2nd ed, Oxford University Press,
South Melbourne, 2007) 256 at 262.
- Khylee
Quince “Māori Disputes and Their Resolution” in Peter Spiller
(ed) Dispute Resolution in New Zealand (2nd ed, Oxford University Press,
South Melbourne, 2007) 256 at 262 and 264–265.
- Carwyn
Jones “Māori Dispute Resolution: Traditional Conceptual Regulators
and Contemporary Processes” in Morgan Brigg
and Roland Bleiker (eds)
Mediating Across Difference: Oceanic and Asian Approaches to Conflict
Resolution (University of Hawai’i Press, Honolulu, 2011) 115 at
124.
- Te
Aka Matua o te Ture | Law Commission Treaty of Waitangi Claims: Addressing
the Post-Settlement Phase – An Advisory Report for Te Puni Kōkiri,
the Office of
Treaty Settlements and the Chief Judge of the Māori Land
Court (NZLC SP13, 2002) at 11.
- Khylee
Quince “Māori Disputes and Their Resolution” in Peter Spiller
(ed) Dispute Resolution in New Zealand (2nd ed, Oxford University Press,
South Melbourne, 2007) 256 at 264.
- Traditionally,
the practices of muru (taking of personal property as compensation) and marriage
alliances were also used: see Tāhū
o te Ture | Ministry of Justice
He Hīnātore ki te Ao Māori: A Glimpse into the Māori
World – Māori Perspectives on Justice (March 2001) at
75–79, 83, 86 and 200. Withdrawal from disputed territory was another
practice: see Khylee Quince “Māori
Disputes and Their
Resolution” in Peter Spiller (ed) Dispute Resolution in New Zealand
(2nd ed, Oxford University Press, South Melbourne, 2007) 256 at 265.
- Tāhū
o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A
Glimpse into the Māori World – Māori Perspectives on Justice
(March 2001) at 83.
- Tāhū
o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A
Glimpse into the Māori World – Māori Perspectives on Justice
(March 2001) at 89.
- For
example, parties that agree to submit future disputes to arbitration are bound
to arbitrate those disputes by the provisions of
the Arbitration Act 1996.
- Khylee
Quince “Māori Disputes and Their Resolution” in Peter Spiller
(ed) Dispute Resolution in New Zealand (2nd ed, Oxford University Press,
South Melbourne, 2007) 256 at 265–268.
emotional response stirred by empathy and kindness; atawhai, the obligation to
serve others and protect their well-being; and manaaki,
the ability to look
after those under one’s care. Quince observes that a traditional dispute
process might involve rangatira
leading discussions, exploring options and
leading their people to accept one solution over another in the event that
consensus is
not achieved by mediation. 11 Kuia and kaumātua also
play a significant role in addressing transgressions and restoring
relationships. 12 The
ultimate measure of success for Māori dispute resolution was the degree of
social harmony achieved within the group and between
the group and others.13
- 15.8 The arrival
of the British settlers introduced to Aotearoa New Zealand institutions that
differentiated between the political
and the legal, while for Māori,
political and legal were subsumed under the rules and practices of mana and tapu
associated
with whakapapa and whanaungatanga.14 With the emphasis on
individual identity and diminution of group obligation, the role of the
rangatira and their authority as spokesperson
and guardian of group rights
diminished.15
- 15.9 Associate
Professor Dr Carwyn Jones has discussed three key differences between
Māori and dominant Western methods of
addressing conflict: relationships
with other people, attitudes towards time and attitudes towards the
environment.16 Māori
tend to resolve disputes with reference to the maintenance of relationships
rather than with the application of universal
standards.17 Collective responsibility
also means that the whole community is responsible for maintaining and
sustaining the values of that community.18 Māori regard the length of time it
takes to resolve a dispute as subordinate to the overall goal of achieving
balance in the
relationships involved. The close connections with the past
and the future mean that the focus is shifted away from the present.19 Because
- Khylee
Quince “Māori Disputes and Their Resolution” in Peter Spiller
(ed) Dispute Resolution in New Zealand (2nd ed, Oxford University Press,
South Melbourne, 2007) 256 at 270.
- Tāhū
o te Ture | Ministry of Justice He Hīnātore ki te Ao Māori: A
Glimpse into the Māori World – Māori Perspectives on Justice
(March 2001) at 83 and 89–91.
- Khylee
Quince “Māori Disputes and Their Resolution” in Peter Spiller
(ed) Dispute Resolution in New Zealand (2nd ed, Oxford University Press,
South Melbourne, 2007) 256 at 269.
- Khylee
Quince “Māori Disputes and Their Resolution” in Peter Spiller
(ed) Dispute Resolution in New Zealand (2nd ed, Oxford University Press,
South Melbourne, 2007) 256 at 271.
- Khylee
Quince “Māori Disputes and Their Resolution” in Peter Spiller
(ed) Dispute Resolution in New Zealand (2nd ed, Oxford University Press,
South Melbourne, 2007) 256 at 271.
- Carwyn
Jones “Māori Dispute Resolution: Traditional Conceptual Regulators
and Contemporary Processes” in Morgan Brigg
and Roland Bleiker (eds)
Mediating Across Difference: Oceanic and Asian Approaches to Conflict
Resolution (University of Hawai’i Press, Honolulu, 2011) 115 at
124.
- Carwyn
Jones “Māori Dispute Resolution: Traditional Conceptual Regulators
and Contemporary Processes” in Morgan Brigg
and Roland Bleiker (eds)
Mediating Across Difference: Oceanic and Asian Approaches to Conflict
Resolution (University of Hawai’i Press, Honolulu, 2011) 115 at
125.
- See
Harry Dansey “A View of Death” in Michael King (ed) Te Ao
Hurihuri: Aspects of Maoritanga (Reed Publishing, Auckland, 1992) 105 at
109; and Tāhū o te Ture | Ministry of Justice He Hīnātore
ki te Ao Māori: A Glimpse into the Māori World – Māori
Perspectives on Justice (March 2001) at 90. This report uses case studies to
demonstrate various tikanga and kawa around dispute resolution. In one example,
the whānau of two kuia who were having a minor dispute came to the marae to
be involved in the process. In this way they supported
their whanaunga but also
ensured their own mana was protected as it was affected by the mana of the
individual.
- Carwyn
Jones “Māori Dispute Resolution: Traditional Conceptual Regulators
and Contemporary Processes” in Morgan Brigg
and Roland Bleiker (eds)
Mediating Across Difference: Oceanic and Asian Approaches to Conflict
Resolution
tikanga that underpin Māori dispute resolution are all closely connected to
or derived from the natural world, parties within
a dispute are not isolated
actors from their environment.20
- 15.10 Associate
Professor Quince favours a modern system of dispute resolution that incorporates
fundamental aspects of tikanga and
establishes practical processes that reflect
the reality of present-day Māori.21 In her view, simply placing
Māori in positions of power within the current systems is inadequate; a
truly representative system
would be predicated on tikanga as well as Māori
people.22
- 15.11 The marae
remains at the centre of Māori life and continues to play a crucial role in
Māori dispute resolution.23
Dame Joan Metge has explained that:24
Māori collectively see
the marae as the appropriate venue for debating issues of all kinds, especially
at family and community
level. Discussion is an integral part of every gathering
held on a marae, whether the community is meeting on its own or entertaining
visitors, and whatever the publicly announced reason for coming together. When
Māori meet for discussion in other places, they
transform them into the
likeness of a marae by their use of space and application of marae rules of
debate.
- 15.12 However,
it is well recognised that the impacts of colonisation have left many Māori
without access to any marae as a forum
for dispute resolution and without access
to wider whānau and hapū as support networks.25
TE KOOTI WHENUA MĀORI | THE MĀORI LAND COURT
- 15.13 State
law has played a significant role in the resolution of Māori succession for
many years. A working Native Land Court
was established in Aotearoa New Zealand
in 1865.26 A brief history
of legislation relating to succession (to whenua Māori but also
other
(University of Hawai’i Press, Honolulu, 2011) 115 at 127,
where Jones emphasises that the present and future generations are
seen as
living faces of the ancestors.
- Carwyn
Jones “Māori Dispute Resolution: Traditional Conceptual Regulators
and Contemporary Processes” in Morgan Brigg
and Roland Bleiker (eds)
Mediating Across Difference: Oceanic and Asian Approaches to Conflict
Resolution (University of Hawai’i Press, Honolulu, 2011) 115 at
128.
- Khylee
Quince “Māori Disputes and Their Resolution” in Peter Spiller
(ed) Dispute Resolution in New Zealand (2nd ed, Oxford University Press,
South Melbourne, 2007) 256 at 280–281.
- Khylee
Quince “Māori Disputes and Their Resolution” in Peter Spiller
(ed) Dispute Resolution in New Zealand (2nd ed, Oxford University Press,
South Melbourne, 2007) 256 at 292.
- See
Joan Metge Korero Tahi: Talking Together (Auckland University Press with
Te Mātāhauariki Institute, Auckland, 2001) at 8–10; Khylee
Quince “Māori
Disputes and Their Resolution” in Peter Spiller
(ed) Dispute Resolution in New Zealand (2nd ed, Oxford University Press,
South Melbourne, 2007) 256 at 269; and Te Aka Matua o te Ture | Law Commission
The Taking into Account of Te Ao Maori in Relation to Reform of the Law of
Succession (NZLC MP6, 1996) at 24.
- Joan
Metge Korero Tahi: Talking Together (Auckland University Press with
Te Mātāhauariki Institute, Auckland, 2001) at 8–10, cited in
Te Aka Matua
o te Ture | Law Commission Treaty of Waitangi Claims: Addressing
the Post-Settlement Phase – An Advisory Report for Te Puni Kōkiri,
the Office of
Treaty Settlements and the Chief Judge of the Māori
Land Court (NZLC SP13, 2002) at 11–12.
- Khylee
Quince “Māori Disputes and Their Resolution” in Peter Spiller
(ed) Dispute Resolution in New Zealand (2nd ed, Oxford University Press,
South Melbourne, 2007) 256 at 271–273.
- The
Native Lands Act 1865, s 5. See Tom Bennion and Judi Boyd Succession to Maori
Land, 1900–52 (Te Rōpū Whakamana i te Tiriti o Waitangi |
Waitangi Tribunal, Rangahaua Whanui National Theme P, 1997) for a detailed
history
of succession to Maori land and other property.
property) reveals the extensive role of state courts in determining succession
matters for Māori.
- 15.14 The Native
Land Court acquired jurisdiction over personal property in the estate of a
Māori person under the Intestate
Native Succession Act 1876. On an
application to the Court, a certificate could be granted setting out who
“according to Native
custom, or most nearly in accordance with Native
custom,” should succeed to the deceased’s personal property and to
appoint
an administrator to distribute that property.27 Further legislative changes
were made in the Native Succession Act 1881 and shortly afterwards, the Native
Lands Amendment Act 1882.
Parliament attempted to address Māori custom by
acknowledging Māori customary marriage, allowing the Court power to
validate
informal wills and allowing personal property to pass according to
Māori custom. 28 In
considering this law, the Supreme Court commented that “[i]f the law of
the colony respecting descents and successions cannot
be reconciled with Native
custom, the latter it would seem must prevail.”29
- 15.15 In 1890,
the Native Land Court was granted concurrent jurisdiction with the Supreme
Court “to grant probates of
wills and letters of administration of the
estates and effects of Natives dying within New Zealand”. 30 Following concerns about how
English and customary laws of succession were being applied to Māori
estates, the Native Land Court
Act 1894 gave the court exclusive jurisdiction
over probate and administration, with Māori custom to prevail unless
“there
be no Native custom applicable to any particular case, then
according to the law of New Zealand”.31
- 15.16 In
contrast to this more accommodating approach to Māori custom, the Native
Land Court Act was amended in 1895 to prevent
ōhākī being
recognised as a legally valid distribution of property (although the Court
continued to have regard to
ōhākī for some years to determine
whether land left in a will was meant to be a gift for life or an outright
gift).32 After a Supreme Court decision
stopped this practice, Māori protest led to an amendment to the Act in
1927, which provided that
succession to Māori land received under a will
would be treated as a customary gift if the donee had died intestate.33
- 15.17 The Native
Land Act 1909 did not substantially change the Native Land Court’s
approach to succession. 34
Wills had to meet the same execution requirements imposed
on
27 The Intestate Native
Succession Act 1876, s 4.
- Tom
Bennion and Judi Boyd Succession to Maori Land, 1900–52 (Te
Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal, Rangahaua
Whanui National Theme P, 1997) at
7–8.
29 Pahoro v Cuff
(1890) 8 NZLR 751 (SC) at 756.
30 The Native Land Laws Amendment Act
1890, s 2.
- The
Native Land Court Act 1894, s 2 definition of “Successor”; and see
Tom Bennion and Judi Boyd Succession to Maori Land, 1900–52 (Te
Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal, Rangahaua
Whanui National Theme P, 1997) at 11.
- Tom
Bennion and Judi Boyd Succession to Maori Land, 1900–52 (Te
Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal, Rangahaua
Whanui National Theme P, 1997) at 11–13 and 36.
- Tom
Bennion and Judi Boyd Succession to Maori Land, 1900–52 (Te
Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal, Rangahaua
Whanui National Theme P, 1997) at 37.
- Tom
Bennion and Judi Boyd Succession to Maori Land, 1900–52 (Te
Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal, Rangahaua
Whanui National Theme P, 1997) at 41.
Europeans and where a Māori died intestate, their estate except for whenua
Māori was to devolve as if they were a European.35 The Act provided for
applications to be made by the deceased’s widow and children where an
intestacy or a will did not provide
sufficiently for their maintenance.36 The Act expressly excluded
the application of the Family Protection Act 1908 to “the estate of a
deceased Native”.37 The
Native Land Court continued to have exclusive jurisdiction to grant probate and
letters of administration.38
The Maori Affairs Act 1953 was a consolidating Act and the laws relating
to succession generally continued on.
- 15.18 Significant
policy changes took effect in 1967 when the Māori Affairs Act 1953 was
amended. The changes had the effect
of making general laws of
succession applicable to Māori other than in relation to whenua
Māori, returning the jurisdiction
for granting probate and letters of
administration to te Kōti Matua | the High Court (the High Court) as well
as the jurisdiction
to hear and determine proceedings relating to estates.39
- 15.19 Te Ture
Whenua Maori Act 1993 (TTWMA) introduced a significant policy change with the
recognition of the Treaty and a focus
on land retention and use by Māori,
although the existing rules relating to succession were generally retained. Te
Ture Whenua
Maori (Succession, Dispute Resolution, and Related Matters)
Amendment Act 2020 has made several changes relevant to succession. Part
3A sets
out a new mediation process has been created to help resolve matters over which
the Māori Land Court has jurisdiction.
The purpose of the Part is to assist
parties to quickly and effectively resolve disputes between themselves in
accordance with the
law and, as far as possible, in accordance with the relevant
tikanga of the whānau or hapū with whom they are affiliated
for both
the process and the substance of the resolution. 40 The Māori Land Court now
has jurisdiction, alongside te Kōti Whānau | the Family Court (the
Family Court) and the High
Court, to determine Family Protection Act 1955 (FPA)
and Law Reform (Testamentary Promises) Act 1949 (TPA) claims relating to whenua
Māori.41 If the claim
only concerns whenua Māori, the application must be made to the Māori
Land Court and not to the Family Court
or High Court.
- 15.20 We have
heard that the expertise of both judges and staff of the Māori Land Court
in tikanga and te reo Māori can
make the Court a supportive and positive
place to go for dispute resolution. The Court is required to conduct proceedings
as will
best avoid unnecessary formality and may also apply such rules of marae
kawa as the judge thinks appropriate and make rulings on
the use of te reo
Māori during a hearing.42
There are additional powers allowing the Court to take a flexible approach
to obtaining and
35 Native Land Act 1909,
ss 133 and 139.
36 Native Land Act 1909, ss 140 and
141.
37 Native Land Act 1909, s 141(5).
38 Native Land Act 1909, s 144.
39 We discuss in Chapter 7 the effect
of the 1967 Act on ownership of Māori land.
40 Te Ture Whenua Maori Act 1993, s
98I.
41 Family Protection Act 1955, s 3A;
and Law Reform (Testamentary Promises) Act 1949, s 5.
42 Te Ture Whenua Maori Act 1993, s
66.
receiving evidence as may assist the Court to deal effectively with the matters
before it.43 The Court may
appoint counsel to assist the Court or represent a person or class of people. 44 As mentioned above, the Court
has new powers to refer disputes to mediation.45
Consideration of the role of the Māori Land Court
- 15.21 The
history of the Māori Land Court we outline above shows that at one time the
Court had exclusive jurisdiction over probate
and administration for Māori,
with Māori custom to prevail if possible. Consideration has continued to be
given to the
appropriate role of the Māori Land Court.46
- 15.22 A Royal
Commission reported on the Māori Land Court in 1980, following a wider
Royal Commission inquiry into the courts
generally.47 The report reflected upon the
diversity of opinion and attitudes regarding the Court.48 The judges at the time and
submissions from the New Zealand Māori Council and Department of Māori
Affairs all stressed the:49
... dissimilarity of its
jurisdiction with those of other courts, and claiming that this special
jurisdiction calls for a particular
type of court ... which only long
association with Maori organisations and people can develop.
- 15.23 The Chief
Judge favoured an overriding social and therapeutic approach for the Court.50 However, the Royal Commission report did
not favour any extension to the Court’s role. Instead, it suggested that
the solution
to allowing the expertise of Māori Land Court judges to be
used more widely was simply for more well-trained Māori to become
judges in
other courts.51 Nonetheless,
the Royal Commission report did recognise that enabling
43 Te Ture Whenua Maori
Act 1993, s 69.
- Te
Ture Whenua Maori Act 1993, s 70. See the discussion in Te Aka Matua o te Ture |
Law Commission Delivering Justice for All: A Vision for New Zealand Courts
and Tribunals (NZLC R85, 2004) at 240.
- Te
Ture Whenua Maori Act 1993, pt 3A. Existing powers to refer matters relating to
representation of Māori groups to mediation
are found in ss 30B and 30C.
Note the Waitangi Tribunal also has the power to refer claims to mediation:
Treaty of Waitangi Act 1975,
sch 2 cl 9A.
- The
Royal Commission on the Maori Land Courts “The Maori Land Courts: Report
of the Royal Commission of Inquiry” [1980]
IV AJHR H3; Te Aka Matua o te
Ture | Law Commission Delivering Justice for All: A Vision for New Zealand
Courts and Tribunals (NZLC R85, 2004); Te Aka Matua o te Ture | Law
Commission Striking the Balance: Your Opportunity to Have Your Say on the New
Zealand Court System (NZLC PP51, 2002); Te Aka Matua o te Ture | Law
Commission Seeking Solutions: Options for change to the New Zealand Court
System (NZLC PP52, 2002); Te Aka Matua o te Ture
| Law
Commission Treaty of Waitangi Claims: Addressing the Post-Settlement Phase
– An Advisory Report for Te Puni Kōkiri, the Office of
Treaty
Settlements and the Chief Judge of the Māori Land Court (NZLC SP13,
2002); and Te Kooti Whenua Māori | Māori Land Court and Tāhū
o te Ture | Ministry of Justice He Pou Herenga Tangata, He Pou Herenga
Whenua, He Pou Whare Kōrero: 150 Years of the Māori Land Court
(2015).
- The
Royal Commission on the Maori Land Courts “The Maori Land Courts: Report
of the Royal Commission of Inquiry” [1980]
IV AJHR H3; and “Report
of Royal Commission on the Courts” [1978] VII AJHR H2.
- The
Royal Commission on the Maori Land Courts “The Maori Land Courts: Report
of the Royal Commission of Inquiry” [1980]
IV AJHR H3 at 70.
- The
Royal Commission on the Maori Land Courts “The Maori Land Courts: Report
of the Royal Commission of Inquiry” [1980]
IV AJHR H3 at 70.
- The
Royal Commission on the Maori Land Courts “The Maori Land Courts: Report
of the Royal Commission of Inquiry” [1980]
IV AJHR H3 at 80.
- The
Royal Commission on the Maori Land Courts “The Maori Land Courts: Report
of the Royal Commission of Inquiry” [1980]
IV AJHR H3 at
75.
Māori Land Court judges to solve Māori social problems was a question
worthy of more discussion and consideration.52
- 15.24 The
Commission reported on the structure of the courts in 2004.53 A major theme of submissions
received on one of the Commission’s preliminary papers related to the need
for a specialist Māori
court to deal with Māori land and wider issues
as well.54 Suggestions were
made for the processing of wills to return to the Māori Land Court as well
as questions around all communal
assets owned by traditional Māori kin
groups and not just Māori land.55 The Commission noted that
Māori are “wary of any approach likely to lead to more cases
involving Māori issues being
dealt with in the general courts”.56
- 15.25 The
Commission noted the suggestion of the Chief Judge of the Māori Land Court
at the time that disputes involving Māori
communities are all of a similar
nature, whether they involve land or other property, and that the Court is
essentially the “Māori
Lands and their Communities Court”.57
- 15.26 The
Commission recommended that the jurisdiction of the Māori Land Court be
extended in relation to communal assets and
that the Court make use of
pū-wananga (experts in tikanga and whakapapa).58 The Commission was referring
to assets Māori might acquire in the context of Treaty settlements but
also communally owned taonga.59
- The
Royal Commission on the Maori Land Courts “The Maori Land Courts: Report
of the Royal Commission of Inquiry” [1980]
IV AJHR H3 at
75.
53 Te Aka Matua o te Ture
| Law Commission Delivering Justice for All: A Vision for New Zealand Courts
and Tribunals
(NZLC R85, 2004).
- Te
Aka Matua o te Ture | Law Commission Seeking Solutions: Options for change to
the New Zealand Court System (NZLC PP52, 2002) at 187. The Commission
referred to the 1986 report of the Advisory Committee on Legal Services and its
suggestion
that te Kooti Whenua Māori | the Māori Land Court be
restructured to return decision-making power to whānau, hapū
and iwi
and to establish tribal rūnanga to work through and decide their own
issues: at 189; see Advisory Committee on Legal
Services Te Whainga i te Tika
| In Search of Justice (Department of Justice, 1986) at
55.
55 Te Aka Matua o te Ture
| Law Commission Seeking Solutions: Options for change to the New Zealand
Court System
(NZLC PP52, 2002) at 191.
56 Te Aka Matua o te Ture | Law
Commission Seeking Solutions: Options for change to the New Zealand Court
System
(NZLC PP52, 2002) at 190.
57 Te Aka Matua o te Ture | Law
Commission Seeking Solutions: Options for change to the New Zealand Court
System
(NZLC PP52, 2002) at 191.
- Te
Aka Matua o te Ture | Law Commission Delivering Justice for All: A Vision for
New Zealand Courts and Tribunals (NZLC R85, 2004) at R118–R120 and
234. Note that the Chief Judge of the Māori Land Court advised the
Commission that pū-wananga
was a more accurate term to muse than
pūkenga: at n 383.The Commission also recommended that the Māori
Appellate Court
should be the forum for deciding any disputed issue or tikanga
in all court litigation.
- Te
Aka Matua o te Ture | Law Commission Delivering Justice for All: A Vision for
New Zealand Courts and Tribunals (NZLC R85, 2004) at 239. The Commission had
earlier suggested that dispute resolution within post settlement entities might
be advanced
by establishing a domestic tribunal established by the settlement
group themselves or from extending the role of te Kooti Whenua
Māori | the
Māori Land Court (including mediation and facilitation, and adjudication if
necessary): Te Aka Matua o te Ture
| Law Commission Treaty of Waitangi
Claims: Addressing the Post- Settlement Phase – An Advisory Report for Te
Puni Kōkiri, the Office of
Treaty Settlements and the Chief Judge of the
Māori Land Court (NZLC SP13, 2002) at 21–22, cited in Te Aka
Matua o te Ture | Law Commission Delivering Justice for All: A Vision for New
Zealand Courts and Tribunals (NZLC R85, 2004) at 237–238. Note that
the Commission’s recommendations for structural changes to the courts were
rejected.
- 15.27 The
Commission cited the comments of the Chief Judge on how the Māori Land
Court could operate:60
This
approach [a judge and pū-wananga sitting together] is not new. When the
Native Land Court was established as a pilot scheme
in 1862, the bench comprised
Pū-wananga chaired by a Pākehā Magistrate. The processes utilized
were hui based. It
is clear that in this area involving as it does the
application of fundamental concepts of tikanga Māori, the usual western
approaches to dispute resolution are unlikely to be as successful as techniques
which utilise Māori processes, Māori knowledge
and are conducted in a
Māori spirit. These ideas will present real challenges in terms of making
orthodox principles of procedural
fairness work in a completely different
cultural context.
Other cases, raising more familiar legal issues of internal iwi or hapū
decision making for example may well be best dealt with
in the usual manner of
judicial proceedings. It will be important for the court to adapt its procedures
to the needs of the parties
and the particular dispute.
- 15.28 The
Commission recorded that strong support for expanding the role of the Māori
Land Court was expressed among key Māori
organisations and opinion leaders,
reflecting a preference by Māori to internally manage their own dispute
resolution processes,
with the Māori Land Court as a back-up where
adjudication is required.61
- 15.29 In 2015, a
report was published to mark 150 years of the operation of the Māori Land
Court.62 The current Chief
Judge commented on the role of the court, observing that:63
I want to see us involved in
more matters than land. When I say a Māori Court, that’s a court that
deals with Māori
issues ... I want to see us get back some of the family
jurisdiction in terms of adoptions, because, at times, we have matters referred
to us from the Family Court to sort out, including family protection issues.
Matters are referred occasionally from the High Court,
when they want a Court
which understands Māori to deal with a particular situation. We should have
the jurisdiction to preside
over these issues from the start.
What role might the Māori Land Court have in resolving
succession disputes (other than over whenua Māori)?
- 15.30 In
our preliminary consultation, it was common to hear concerns about the
challenges Māori face in resolving succession
matters that may involve not
only Māori land, but other property governed by general succession law. As
a result, it may be
necessary for whānau to deal with not only the
Māori Land Court but also the High Court to obtain probate or letters of
administration. Sorting out the estate can then be costly and time- consuming,
requiring engagement with two or more courts. The
desirability of a “one-
stop shop” for estates of Māori was raised with us several
times.
- 15.31 One way to
establish a “one-stop shop” would be to extend the Māori Land
Court’s jurisdiction to matters
of probate and administration in relation
to estates already before
60 Te Aka Matua o te Ture
| Law Commission Delivering Justice for All: A Vision for New Zealand Courts
and Tribunals
(NZLC R85, 2004) at 241.
61 Te Aka Matua o te Ture | Law
Commission Delivering Justice for All: A Vision for New Zealand Courts and
Tribunals
(NZLC R85, 2004) at 238–239.
- Te
Kooti Whenua Māori | Māori Land Court and Tāhū o te Ture |
Ministry of Justice He Pou Herenga Tangata, He Pou Herenga Whenua, He Pou
Whare Kōrero: 150 Years of the Māori Land Court
(2015).
- Te
Kooti Whenua Māori | Māori Land Court and Tāhū o te Ture |
Ministry of Justice He Pou Herenga Tangata, He Pou Herenga Whenua, He Pou
Whare Kōrero: 150 Years of the Māori Land Court (2015) at
135.
the Court in relation to whenua Māori. This may not be desirable given the
specialised nature of probate and administration
matters and the risk of
unintended consequences in extending jurisdiction in this way. An
alternative might be for the Māori
Land Court to take more of an active
liaison role with the High Court where probate or letters of administration are
required.
This would not avoid the possibility that parties would have to
engage with more than one court to resolve succession matters.
On the other
hand, the benefits of allowing the Māori Land Court to resolve all
matters of succession might outweigh any
perceived risks. The concerns expressed
to us might also raise more general issues about the accessibility of
information about
the law relating to succession.
- 15.32 We are
seeking feedback on the appropriate role of the Māori Land Court in
relation to succession matters (other than whenua
Māori).
THE GENERAL COURTS
- 15.33 Succession
matters other than those in relation to whenua Māori are currently governed
by the general law of succession,
and accordingly, any disputes may be taken to
the courts that have jurisdiction over succession matters. As discussed in
Chapter
12, the High Court has jurisdiction to determine proceedings relating to
testamentary matters and matters relating to the estates
of deceased persons,
including intestate estates. Claims under the Property (Relationships) Act 1976
(PRA), FPA and TPA may all be
heard in the Family Court or High Court. We
discuss resolving disputes in court in Chapter 13.
- 15.34 Māori
may choose to resolve a succession dispute in these courts, and the right to
do so is guaranteed by the Treaty.
But concerns have long been expressed about
Māori experience with the courts and justice system and the need for the
justice
system to better take account of te ao Māori.64 The Independent Panel
examining the 2014 family justice reforms reported in 2019 that the family
justice system is largely monocultural
and does not operate in a way that
recognises tikanga Māori or Māori views on whānau.65
- 15.35 Some steps
have been taken in recent decades to incorporate tikanga into contemporary
dispute resolution processes, including
in the administration of justice by the
courts.66
- See
for example The Maori Perspective Advisory Committee Puao-Te-Ata-Tu (day
break): The Report of the Ministerial Advisory Committee on a Maori Perspective
for the Department of Social Welfare
(September 1988); Moana Jackson The
Maori and the Criminal Justice System: A New Perspective | He Whaipaanga
Hou (Policy and Research Division, Department of Justice, Study Series 18,
1987–1988; and Turuki! Turuki! Move Together! Transforming our criminal
justice system: The second report of Te Uepū Hāpai i te Ora |
Safe and Effective Justice Advisory Group (December 2019); Te Aka Matua o
te Ture | Law Commission Delivering Justice for All: A Vision for New Zealand
Courts and Tribunals (NZLC R85, 2004); Te Aka Matua o te Ture | Law
Commission Justice: The Experiences of Māori Women | Te Tikanga
o te Ture: Te Mātauranga o ngā Wāhine Māori e pa ana ki
tēnei (NZLC R53, 1999); Rosslyn Noonan, La-Verne King and Chris
Dellabarca Te Korowai Ture ā-Whānau: The final report of the
Independent Panel examining the 2014 family justice reforms (Tāhū
o te Ture | Ministry of Justice, May 2019).
- Rosslyn
Noonan, La-Verne King and Chris Dellabarca Te Korowai Ture
ā-Whānau: The final report of the Independent Panel examining the 2014
family justice reforms (Tāhū o te Ture | Ministry of Justice, May
2019) at 37.
- See
discussion in Helen Winkelmann “Renovating the House of the Law”
(keynote speech to Hui-a-Tau 2019, Te Hūnga
Rōia Māori o Aotearoa
| The Māori Law Society Annual Conference, Wellington, 29 August 2019).
This has been particularly
the case in the criminal justice sphere: Khylee
Quince “Māori Disputes and Their Resolution” in Peter Spiller
(ed)
Dispute Resolution in New Zealand (2nd ed, Oxford University Press,
South Melbourne, 2007) 256 at 275–281. See also the discussion of the Te
Ao Mārama model
for the District Court: Heemi Taumaunu “Norris Ward
McKinnon Annual
- 15.36 Recent
recommendations have been made for reform in relation to the Family Court. The
Independent Panel examining the 2014 family
justice reforms recommended the
development of a joined-up family justice service, to be called Te Korowai
Ture-ā- Whānau.67
The Panel recommended that Tāhū o te Ture | Ministry of Justice
work with iwi and other Māori, the Family Court and
other professionals to
develop, resource and implement a strategic framework to improve family service
for Māori.68 The Panel
also observed that the emphasis on relationships in Māori culture contrasts
with family justice services, which prioritise
individual rights of parties. 69 The Panel made several
recommendations directed to increasing the number of Māori Family Court
judges and pending that, to appoint
some Māori Land Court judges to sit in
the Family Court, require Family Court judges to observe proceedings in the
Māori
Land Court, and involve Family Court judges in the tikanga Māori
programme delivered by Te Kura Kaiwhakawā | Institute
of Judicial
Studies.70
- 15.37 In the PRA
review we made several recommendations about the resolution of relationship
property matters that involve questions
of tikanga
Māori:
(a) The Family Court should be able to appoint a person
to make an inquiry into matters of tikanga Māori and report to the
Court.
(b) Family Court judges should receive education on tikanga Māori.
(c) The Government should give further consideration to warranting Māori
Land Court judges to sit alongside judges in the Family
Court where there is a
difficult matter of tikanga Māori at issue.71
- 15.38 Issues of
ensuring diversity amongst the judiciary and the judiciary’s appreciation
of te ao Māori are important
for all courts. Te Kura Kaiwhakawā |
Institute of Judicial Studies, the professional development arm of the
judiciary, provides
education programmes and resources to the judiciary,
including te reo and tikanga wānanga.72
- 15.39 Courts may
access expertise on matters of fact such as tikanga in various ways. Perhaps
most commonly, the parties to a case
will each provide evidence from an expert.
Often, the court will require the experts to conference and prepare a join
witness statement
identifying the matters on which they agree and disagree.73 In Ellis v R,74 counsel
agreed
Lecture 2020: Mai te pō ki te ao mārama | The
transition from night to the enlightened world – Calls for
transformative
change and the District Court response” (11 November
2020).
- Rosslyn
Noonan, La-Verne King and Chris Dellabarca Te Korowai Ture
ā-Whānau: The final report of the Independent Panel examining the 2014
family justice reforms (Tāhū o te Ture | Ministry of Justice, May
2019).
- Rosslyn
Noonan, La-Verne King and Chris Dellabarca Te Korowai Ture
ā-Whānau: The final report of the Independent Panel examining the 2014
family justice reforms (Tāhū o te Ture | Ministry of Justice, May
2019) at 38.
- Rosslyn
Noonan, La-Verne King and Chris Dellabarca Te Korowai Ture
ā-Whānau: The final report of the Independent Panel examining the 2014
family justice reforms (Tāhū o te Ture | Ministry of Justice, May
2019) at 40.
- Rosslyn
Noonan, La-Verne King and Chris Dellabarca Te Korowai Ture
ā-Whānau: The final report of the Independent Panel examining the 2014
family justice reforms (Tāhū o te Ture | Ministry of Justice, May
2019) at 37–39.
- See
Te Aka Matua o te Ture | Law Commission Review of the Property
(Relationships) Act 1976 | Te Arotake i te Property (Relationships) Act
1976 (NZLC R143, 2019) at R83–R85 and
[14.59]–[14.62].
72 See
Te Kura Kaiwhakawā | Institute of Judicial Studies Prospectus
2021.
73 See for example Ngāti
Whātua Ōrākei Trust v Attorney-General [2020] NZHC 3120 at
[41].
74 Ellis v R [2020] NZSC 89.
on a process involving a wānanga of tikanga experts who met with each other
and with all counsel and produced an agreed statement
of
tikanga.
- 15.40 As
discussed earlier, the appointment of a court expert or pūkenga (or
pū-wananga) is another way to assist the court.75 The Māori Appellate
Court may also provide an opinion on a question of tikanga in an appropriate
case.76
- 15.41 Māori
Land Court judges could sit on the Family Court and High Court succession cases,
bringing their expertise in tikanga
to bear in relation to the
dispute.
How might the Family Court and High Court best deal with
whānau disputes over succession?
- 15.42 Some
Māori may wish to bring claims in the Family Court or High Court. We are
seeking feedback about whether there are
changes that might be made to the
processes of the High Court and Family Court that would better accord with
tikanga and that would
then better facilitate decision-making that takes tikanga
into account.
OTHER WAYS TO RESOLVE SUCCESSION DISPUTES
- 15.43 Going
to court may be less attractive and less desirable for disputes relating to
succession given the generally private nature
of the issues and the focus on
relationships within and between whānau. The Commission has previously
noted that litigation,
as a means of solving intra-kin group disputes, is
unlikely to be the most efficient or durable approach to take, the
essential
issue being that kin groups cannot escape having an ongoing
relationship.77
- 15.44 Resolving
disputes outside of court is discussed in Chapter 14. It seems that mediation
and arbitration are dispute resolution
methods used in some circumstances by
Māori but the private nature of these mechanisms means that there is
limited information
available about the extent of that use.78 We discuss here the potential
for mediation and arbitration as methods to resolve succession
disputes.
Mediation
- 15.45 Mediation
is a voluntary and confidential process where an impartial and independent third
party chosen by the parties assists
them to resolve their dispute. The more
involved the parties are in deciding the outcome of their dispute, the more
likely they are
to be
- See
subpt 5 of pt 9 of the High Court Rules 2016 and the inherent jurisdiction of
the court: Ngāti Whātua Ōrākei Trust v Attorney-General
[2020] NZHC 3120 at [36]. Section 99 of the Marine and Coastal Area (Takutai
Moana) Act 2011 provides for the High Court to refer a question of tikanga to
a
court expert (pūkenga).
- Te
Ture Whenua Maori Act 1993, s 61. See also Takamore v Clarke [2012] NZSC
116, [2013] 2 NZLR 733 at [95]; and the discussion in Te Aka Matua o te Ture |
Law Commission Delivering Justice for All: A Vision for New Zealand Courts
and Tribunals (NZLC R85, 2004) at 242 and following.
- Carrie
Wainwright “Maori Representation and the Courts” (paper presented to
the New Zealand Centre for Public Law Roles
and Perspectives in the Law
Conference, Victoria University of Wellington, Wellington, 5–6 April 2002)
at 21, cited in Te Aka
Matua o te Ture | Law Commission Treaty of Waitangi
Claims: Addressing the Post-Settlement Phase – An Advisory Report for Te
Puni Kōkiri, the Office of
Treaty Settlements and the Chief Judge of the
Māori Land Court (NZLC SP13, 2002) at
21.
78 See for example
Ngawaka v Ngāti Rehua-Ngātiwai ki Aotea Trust Board (No 2)
[2021] NZHC 291.
satisfied with the outcome and abide by it. In a mediation, the rules of
evidence do not apply, and typically anything said or presented
during the
mediation is not admissible in any subsequent court proceedings. Where a
mediation leads to a successful resolution, the
parties will usually record the
outcome in a binding agreement.
- 15.46 Mediation
may be a useful way for whānau to resolve disputes, particularly after the
death of a whānau member. Some
have expressed caution about a standard
model of mediation for dispute resolution in a Māori context.79 Other tikanga-based processes
may be better suited for whānau. Some mediation services are available that
offer tikanga- based,
Māori mediation frameworks derived from
mātauranga Māori and incorporating Māori beliefs, principles,
values
and practices.80
- 15.47 It would
be possible to incorporate tikanga-based mediation into the resolution of
succession disputes, leaving the courts in
reserve where mediation is
unsuccessful. Mediation has long been included in dispute resolution processes
contemplated under TTWMA
and the Waitangi Tribunal Act 1975.81
Arbitration
- 15.48 In
arbitration, an independent third party will make a private determination of a
dispute after hearing the representations
of the parties. The decision of the
arbitrator (known as an award) is normally final and binding on the parties and
is enforceable
in the courts.
- 15.49 Arbitration
allows parties to choose to apply non-state laws, either in combination with or
instead of state law.82 This
means that parties can choose to apply tikanga as the applicable proper law,
without having to prove that tikanga meets the common
law rules for recognition
as law.83 This may also allow
more scope for an arbitration to follow a tikanga-based process. For these
reasons, arbitration may be an attractive
option for whānau who want to
resolve a dispute in accordance with tikanga and be confident that an outcome
will be reached.
- 15.50 However,
the way in which arbitration is undertaken and on what issues may be important.
While in recent years some Māori
have demonstrated an interest in
arbitrating disputes, this has been with mixed success, including because
technical requirements
for valid arbitrations have not always been met.84
- See
James T Hudson “Tikanga Maori & the Mediation Process” (LLM
Dissertation, Te Herenga Waka | Victoria University
of Wellington, 1996) at
20–29.
- See
for example Tūhono Māori Dispute Resolution Collective
“Tūhono: Māori Dispute Resolution” <www.tuhono.nz>; and Te Reo O Te Omeka Hau
“He Aha Te Tikanga?” <fairwayresolution.com>.
- Te
Ture Whenua Maori Act 1993, ss 26E–26M, 26S–26ZA, 30B–30I and
98J–98S; and Treaty of Waitangi Act 1975,
sch 2 cl
9A.
82 Amokura Kawharu
“Arbitration of Treaty of Waitangi Settlement Cross-Claim Disputes”
(2018) 29 PLR 295 at 303.
- In
disputes which can only be resolved through the application of customary law,
one of the common features of arbitrations dealing
with such matters is a choice
to apply tikanga as the proper law, see Amokura Kawharu “Arbitration of
Treaty of Waitangi Settlement
Cross-Claim Disputes” (2018) 29 PLR 295 at
301.
- For
example, in Ngawaka v Ngāti Rehua-Ngātiwai ki Aotea Trust Board (No
2) [2021] NZHC 291, the Court considered the appointment of a particular
arbitrator to arbitrate a dispute in relation to whakapapa to be contrary to
Ngāti Rehua- Ngātiwai ki Aotea tikanga.
- 15.51 One aspect
of the tikanga of Māori dispute resolution processes is the use of debate
and through that the building of consensus
on a matter in dispute. The idea of
an arbitral tribunal that is independent of the parties having final authority
over the resolution
of a dispute may not accord with that. On the other hand,
rangatira have traditionally taken significant roles in dispute resolution
and
if the right arbitrator is chosen (as a single arbitrator or as a member of an
arbitral tribunal), their mana may reassure the
parties that the process may be
followed successfully.
NEW MĀORI MODELS OF DISPUTE RESOLUTION
- 15.52 There
may be space for a modern Māori system of dispute resolution reflecting the
present-day reality of Māori and
incorporating fundamental aspects of
tikanga. 85 Associate Professor Quince
has suggested that such a system would be based on the fundamental building
blocks of community input
and responsibility, reciprocity and balance,
inclusiveness in participation and accountability as well as representation and
the
use of an appropriate forum, such as a marae or other suitable space, as
well as te reo Māori.86
Such a system would include a Māori conception of what it means to be
human as well as concepts of whakapapa, mana, tapu and
wider collectivity in
order to achieve a coherent and balanced world or state of ea that reinforces
obligations arising from individuals
who are part of a connected universe.87
- 15.53 There may
be support for a Māori dispute resolution body or bodies or for steps to be
taken to support a return to marae
as the place of decision-making in relation
to succession disputes. This might be supported by specific roles for kuia and
kaumātua.
There might be a role for the Māori Land Court or other
courts to support marae-based decision-making.
- 15.54 We would
welcome feedback on what new models of dispute resolution might be desirable,
bearing in mind the practical reservations
we express in Chapter 2 about
allowing tikanga to determine succession matters for Māori without state
law involvement.
- See
Khylee Quince “Māori Disputes and Their Resolution” in Peter
Spiller (ed) Dispute Resolution in New Zealand (2nd ed, Oxford University
Press, South Melbourne, 2007) 256; and Gina Hefferan “Post-Settlement
Dispute Resolution: Time to
Tread Lightly” [2004] AukULawRw 9; (2004) 10 Auckland U L Rev 212
at 239–240.
- Khylee
Quince “Māori Disputes and Their Resolution” in Peter Spiller
(ed) Dispute Resolution in New Zealand (2nd ed, Oxford University Press,
South Melbourne, 2007) 256 at 280–292.
- Khylee
Quince “Māori Disputes and Their Resolution” in Peter Spiller
(ed) Dispute Resolution in New Zealand (2nd ed, Oxford University Press,
South Melbourne, 2007) 256 at
280–281.
|
|
Q76
|
Have we correctly described the tikanga relevant to dispute resolution?
What else
|
might be relevant?
|
Q77
|
Should the Māori Land Court have a broader role in relation to
resolving succession
|
disputes over matters other than whenua Māori?
|
Q78
|
Is it important to make the general courts more accessible and attractive
for Māori?
|
If so, what needs to change? Is knowledge and understanding of tikanga the
primary goal?
|
Q79
|
Are mediation or arbitration useful ways to resolve succession disputes?
Should
|
tikanga-based mediation be included in state law as a dispute resolution
option?
|
Q80
|
How else might whānau resolve succession disputes? Are there other
options we
|
have not identified? If so, what are they? What are the best options, and
how might they be facilitated?
|
QUESTIONS
CHAPTER 16
Role
of personal representatives
IN THIS CHAPTER, WE CONSIDER:
- personal
representatives’ duties when claims are brought, or may be brought,
against an estate; and
- issues with the
current law and proposals for reform.
THE CURRENT LAW
Duty
to give notice of a claim
- 16.1 Personal
representatives’ duty of even-handedness extends to claimants against an
estate where personal representatives
are aware that they wish to make a claim.
1 Personal representatives must not
actively or dishonestly conceal relevant material about the estate from
potential claimants who
seek information.2
- 16.2 Te
Kōti Pīra | the Court of Appeal (the Court of Appeal) has confirmed
there is no general duty to advise all potential
claimants of the death of a
deceased, nor a general duty to advertise for claimants.3 The Court left open the
question of whether a duty of even- handedness and a duty to notify potential
claimants should extend to those
of whose claims the executor ought to be aware.
However, in B v T, te Kōti Matua | the High Court (the High Court)
held that the personal representatives ought to have given notice to the
deceased’s
estranged daughter.4 The Court reasoned it should
have been “abundantly plain” the daughter would have been entitled
to claim.
1 Irvine v Public
Trustee [1988] NZCA 161; [1989] 1 NZLR 67 (CA) at 70.
2 MacKenzie v MacKenzie (1998)
16 FRNZ 487 (HC) at 495.
3 Sadler v Public Trust [2009]
NZCA 364, [2009] NZFLR 937 at [39].
4 B v T [2015] NZHC 3174 at
[111].
The role of personal representatives in court
proceedings
- 16.3 Personal
representatives will be the named defendants in Family Protection Act 1955
(FPA), Law Reform (Testamentary Promises)
Act 1949 (TPA) and Property
(Relationships) Act 1976 (PRA) proceedings, but the role they should take to
actively defend the claims
differs based on the nature of the claims and the
extent to which the claims are opposed by other parties.
- 16.4 In FPA
proceedings, the representatives can be described as “nominal
defendants” because they are generally
expected to take a neutral role
in proceedings, submitting to the judgment of the court without taking
sides.5 Section 11A of the
FPA imposes a duty on personal representatives to place all relevant
information about the estate finances
and the deceased’s reasons for
making dispositions before the court.
- 16.5 In
contrast, personal representatives are expected to take an active role in
defending claims under the TPA. The beneficiaries
under the will may not be able
to shed any light on the alleged claim or to contest the detail. 6 The personal
representatives’ role is therefore to ensure the claim is properly tested
and proved. However, where other parties
wish to take full part in the
proceedings, it is usual for personal representatives to take a neutral role.7
- 16.6 The same
active role is expected of personal representatives in PRA proceedings.8
- 16.7 In any of
these proceedings, the court may require personal representatives to represent
infants, unborn persons, absentees or
those not already represented.9
Managing conflicts of interest
- 16.8 When
a claim is made against an estate, sometimes personal representatives will have
a conflict of interest. A personal representative
may be:10
(a) a claimant against the
estate;11
- John
Earles and others Wills and Succession (NZ) (online looseleaf ed,
LexisNexis) at [13.11]; and Bill Patterson Law of Family Protection and
Testamentary Promises (4th ed, LexisNexis, 2013) at
109.
6 See Nicola Peart (ed)
Family Property (online looseleaf ed, Thomson Reuters) at [TA5.07].
7 Bill Patterson Law of Family
Protection and Testamentary Promises (4th ed, LexisNexis, 2013) at 110,
giving Re Barker
(1997) 15 FRNZ 618 (HC) as an example.
- Bill
Atkin and Bill Patterson Laws of New Zealand Family Protection and other
Family Property Arrangements (online ed) at [52].
- See
Family Court Rules 2002, rr 380 and 382, regarding applications for
representation; High Court Rules 2016, r 4.27; and discussion
in Bill Patterson
Law of Family Protection and Testamentary Promises (4th ed, LexisNexis,
2013) at 316–
317. Section 4(4) of the Family Protection Act
1955 also provides that personal representatives may apply on behalf of
any person who is not of full age or mental capacity.
- This
list is taken from Stephen McCarthy “Will Challenges – what is the
executor to do?” (paper presented to Trusts
& Estates Conference 2016,
Auckland, 18 August 2016) at 10–11. See also Bennett v Percy [2020]
NZFC 3223; and John Caldwell Family Law Service (NZ) (online looseleaf
ed, LexisNexis) at [7.909], referring to instances where a personal
representative retains their role while defending
the claim in their capacity as
beneficiary.
- Note
that partners who elect option A under s 61 of the Property (Relationships) Act
1976 are ineligible to apply for letters of administration
in their
partner’s intestacy: High Court Rules 2016, r 27.35. However, a partner
electing option A may still be appointed an
executor. If a surviving partner is
the sole personal representative of the deceased
partner’s
(b) a beneficiary and intends to defend a claim as a
beneficiary;
(c) a family member on one side of a dispute between family members; or
(d) the family solicitor who has previously acted for a number of family
members.
- 16.9 In these
instances, it may be appropriate for the personal representatives to renounce or
retire from their role because of the
conflict.
- 16.10 Personal
representatives may, with the consent of the High Court and if not expressly
prohibited, appoint Public Trust as sole
executor or as a co-executor.12
- 16.11 If the
conflicted individual does not step down as personal representative, the High
Court has power to remove them under section
21 of the Administration Act 1969.
The Court of Appeal has held that “the conflict must actually prejudice
the beneficiaries’
welfare or undermine the executor’s ability to
perform his or her duties as administrator”.13
ISSUES
Criticism
of personal representatives’ duty to notify potential claimants
- 16.12 The case
law suggests that personal representatives have a duty to notify potential
claimants of whose claims they ought to
be aware. There has been criticism that
this requires the personal representatives to speculate as to who may or may not
wish to
bring a claim, to judge the strength of the claim, and advise them
accordingly.14 These are
matters critics say are inconsistent with personal representatives’
duties.
- 16.13 We have
heard during our preliminary engagement that the current law is unsatisfactory.
Some individuals stressed to us that
a personal representative’s primary
duty is to administer the estate and distribute it according to the
deceased’s will
or the intestacy regime. On the other hand, others we have
heard from favoured imposing obligations on the personal representatives
to take
reasonable steps to notify potential claimants.
The role personal representatives should take in proceedings
may be unclear
- 16.14 The
role personal representatives should take in defending claims against an estate
is set out in case law. It is also highly
dependent on the nature of the claim
and how other parties choose to participate. In our preliminary engagement,
several people emphasised
that the role of personal representatives in
proceedings should be clear and their duties as straightforward as
possible.
Applications to replace personal representatives should be made
and dealt with efficiently
- 16.15 As
noted, there may be some cases where personal representatives have a conflict of
interest but continues to act as representative.
When personal representatives
must
estate, they must submit any agreement settling relationship
property matters to the court for approval: Property (Relationships)
Act 1976, s
21B(3).
12 Public Trust Act 2001, s 76.
13 Tod v Tod [2015] NZCA 501,
[2017] 2 NZLR 145 at [27], citing Hunter v Hunter [1938] NZLR 520 (CA) at
530–531.
- Shane
Campbell “Executors and trustees of estates: an obligation to invite
adverse claims against an estate?” [2018] NZLJ 75 at
76.
stand aside because of the conflict, but they refuse to do so, it will be
necessary for affected claimants or beneficiaries to
apply to the High Court
for their removal. It is important that removal applications can be made and
dealt with as efficiently as
possible.
PROPOSALS FOR REFORM
Personal
representatives’ duty to notify potential claimants should be
clarified
- 16.16 Our
preliminary view is that duties on personal representatives to notify potential
claimants should be clarified in the new
Act by requiring them to give notice in
a prescribed form to certain individuals.
- 16.17 First, we
propose the new Act should require personal representatives to give notice to
the deceased’s surviving partner.
The prescribed form of the notice would
contain information about:
(a) the option of choosing relationship
property rights rather than receiving what is provided in the will or an
intestacy;15
(b) family provision claims;
(c) the relevant time limits; and
(d) obtaining independent legal advice.
- 16.18 The
advantage of this approach is that surviving partners will be made aware of
their rights, which we understand is not always
the case currently. The notice
procedure should reduce the likelihood of proceedings being filed out of time
because the claimant
was unaware of their rights.16
- 16.19 On the
other hand, we recognise the difficulties in requiring personal representatives
to determine whether the deceased was
in a relationship at the time of their
death, but we consider the benefits of the approach outweigh this potential
difficulty.
- 16.20 Second, in
Chapter 4 on family provision, we propose several options that would
enable:
(a) the deceased’s children under a prescribed age to
claim a family provision award (we present alternatives in Chapter 4 for
whether
the prescribed age should be 18, 20 or 25);
(b) disabled adult children dependent on the deceased parent to claim a
family provision award; and
(c) all children of the deceased to claim a family provision award to
recognise the parent- child relationship and that the child
belongs to the
family if the deceased’s will fails to do so.
- 16.21 We propose
the new Act should require personal representatives to give notice in a
prescribed form to:
(a) the guardian of any of the deceased’s
children aged under 18; and
- Note
the option for reform proposed in Chapter 3 regarding relationship property
entitlements that the law should adopt a “top-up”
approach. When
choosing relationship property division on death, a surviving partner would be
entitled to whatever provision is made
for them under the will plus whatever
further property is needed from the estate to top-up that provision to the full
extent of their
relationship property
entitlement.
16 Note this
should take place alongside a general education campaign as proposed in Chapter
18.
(b) children aged 18 or over if the prescribed age is set at
either 20 or 25.
- 16.22 The notice
would set out information about family provision claims, relevant time limits
and obtaining independent legal advice.
- 16.23 Again, a
potential difficulty with this approach is requiring the personal
representatives to determine who may be an eligible
child claimant. As set out
in Chapter 4, we propose that non-biological children for whom the deceased
assumed parental responsibility
in an enduring way should be eligible as
accepted children to apply for a family provision award. Again, our preliminary
view is
that the benefits of this approach outweigh these potential
difficulties.
- 16.24 In Chapter
4, we express reservations about awards to disabled adult children and awards to
all children to recognise them as
members of the deceased’s family. At
this stage, we have not considered proposals requiring personal representatives
to give
notice to these individuals. We recognise, however, if there is strong
support for the inclusion of these claims in the new Act,
that there is a good
case for extending personal representatives’ notice requirements to these
potential claimants.
- 16.25 We do not
propose that personal representatives should be required to give notice in a
prescribed form to potential contribution
claimants. As claimants could be any
individual and not just the deceased’s family members, it could be
difficult for personal
representatives to identify these individuals.
The role personal representatives should take in proceedings
should not be prescribed in the new Act
- 16.26 We
have considered whether the role personal representatives should take in
proceedings under the Act should be set out in the
new Act. In particular we
have considered whether the Act should expressly provide that the personal
representatives are to assume
a neutral role.
- 16.27 Although
we see some merit in prescribing in the new Act the role personal
representatives should take, we do not favour this
approach for several
reasons.
(a) First, as discussed in Chapters 11 and 14, we consider
there are advantages in encouraging parties to settle disputes without
going to
court. If personal representatives are required by the statute to take a
neutral position, it may be unclear when personal
representatives ought to
actively engage in settlement negotiations or let a court decide the matter.
(b) Second, personal representatives should be prepared to take a pragmatic
approach depending on the nature of the claim and what
roles other parties take
in defending a claim. For example, when other beneficiaries actively defend the
claim, we would expect personal
representatives to take a neutral and passive
role. If, on the other hand, a person brought a baseless contribution claim, we
would
expect personal representatives to defend the proceeding. To prescribe in
the new Act what the approach should be in any given case
would be cumbersome
and impractical.
(c) Lastly, in our review of comparable jurisdictions, we are not aware of
any jurisdiction that prescribes in its legislation the
role personal
representatives are to take, nor are we aware of any recommendations from law
reform bodies in those jurisdictions
to implement legislative guidance.
- 16.28 We do,
however, propose the new Act should require personal representatives to assist
the court by placing before the court
all relevant information in the personal
representative’s possession or knowledge including:17
(a) members of the deceased’s
family;
(b) the financial affairs of the estate;18
(c) persons who may be claimants under the Act; and
(d) the deceased’s reasons for making the dispositions made in the will
or for not making provision or further provision for
any person.
The court should have powers under the new Act to remove and
replace personal representatives
- 16.29 Although
it appears conflicts of interest frequently arise when claims are made against
estates, we do not consider it necessary
for the new Act to provide guidance to
personal representatives for managing conflicts. We understand that in most
cases personal
representatives and their legal counsel will know how to manage
the conflict consistently with their legal duties.
- 16.30 We
recognise, however, there will be cases where it is expedient for the court to
intervene to remove or replace a personal
representative. We see merit in
expressing this power within the new Act so the matter can be dealt with in the
same court and same
proceedings without the need for a separate application to
the High Court under the Administration Act. If the proceedings relating
to the
substantive claim are filed in te Kōti Whānau | the Family Court, our
preliminary view is that the Family Court
should have jurisdiction to remove or
replace personal representatives involved in that matter.
- The new Act
should require personal representatives to give notice in a prescribed
form to the deceased’s surviving partner and the deceased’s children
who are potentially eligible for a family provision
award. The notice should
include information about the option of choosing relationship property rights,
rights to claim family provision
under the new Act, relevant time limits and
obtaining independent legal advice.
- The new Act
should not prescribe the role personal representatives are to take in
proceedings, except to provide a duty to place before the court information in
the personal representative’s knowledge or possession
concerning:
- members
of the deceased’s family;
- the
financial affairs of the estate;
- persons
who may be claimants under the Act; and
o SUMMARY OF PROPOSALS FOR REFORM
- Currently provided for in s 11A of
the Family Protection Act 1955. The Commission recommended a similar duty in
Te Aka Matua
o te Ture | Law Commission Succession Law: A Succession
(Adjustment) Act (NZLC R39, 1997) at 152.
- Depending
on how the law may be reformed to deal with property that may have passed from
the deceased without falling into the estate,
such as jointly owned property
passing by survivorship, personal representatives may need to place further
information before the
court. We discuss options to address property passing
outside the estate in Chapter 9.
QUESTIONS
o
the deceased’s reasons for making the dispositions made in the will or
for not making provision or further provision for any
person.
No provision should be made within the new Act for how personal
representatives are to manage conflicts of interest, instead leaving
the general
law on personal representatives’ duties to apply. The new Act should,
however, contain a power for both the High
Court and Family Court to remove or
replace personal representatives
where expedient.
•
|
|
Q81
|
Do you agree with the issues we have identified?
|
|
Q82
|
Are there other issues with the law we have not identified?
|
|
Q83
|
What are your views on the proposals for reform?
|
|
Q84
|
Do you have
|
any other suggestions for reform?
|
|
CHAPTER 17
Cross-border
issues
IN THIS CHAPTER, WE CONSIDER:
- the conflict of
law rules relating to succession, particularly claims against estates and
intestate succession; and
- issues with the
current law and proposals for reform.
THE
CURRENT LAW
- 17.1 In 2019, an
estimated 272 million people worldwide lived in a country other than their birth
country. Between 500,000 and one
million New Zealanders are estimated to live
overseas.1 Prior to 2020,
Aotearoa New Zealand also had a high rate of net migration.2 With the frequent movement of people and
property between countries, it is inevitable that Aotearoa New Zealand’s
domestic
succession laws will come into conflict with the domestic laws of
another country.
- 17.2 With the
exception of section 5 of the Administration Act 1969 (confirming te Kōti
Matua
| the High Court’s (the High Court) broad jurisdiction in relation to
administration and succession) and the choice of law
rules in section 22 of
the Wills Act 2007, the conflicts of law rules about claims against estates
are found in the common
law.
- 17.3 In Aotearoa
New Zealand, matters of administration3 are governed by the law of the
country in which the assets are located and a grant of administration is made.
Where, for example,
probate of a will is granted by the High Court in Aotearoa
New Zealand, the personal representative will have authority to collect
the New
Zealand assets and pay any debts, according to New Zealand law. If, however, the
deceased also owned property in Australia,
a fresh grant of administration in
Australia will be required for the personal
- Paul
Spoonley The New New Zealand: Facing demographic disruption (Massey
University Press, 2020) at 119. We note that events such as COVID-19
encourage more New Zealanders to return from overseas
and fewer to leave.
- Aotearoa
New Zealand’s annual net migration rate was 11.4 per 1,000 people in
the year ended June 2019 (similar to 2017
and 2018). The rate is similar to
Australia’s in 2017–2018 but more than triple that in the United
Kingdom: Tatauranga
Aotearoa | Stats NZ “New Zealand net migration rate
remains high” (12 November 2019)
<www.stats.govt.nz>.
- Administration
is concerned with the appointment of a personal representative, the collection
of the assets of the estate and the
payment of the estate’s
debts.
representative to administer that property. A claim under the Law Reform
(Testamentary Promises) Act 1949 (TPA) has been categorised
by the courts as a
matter of administration.4
This means that if a grant of administration has been made in Aotearoa New
Zealand, a court is able to entertain a claim under the
TPA that may then be
satisfied from that New Zealand property. For administration purposes, it does
not matter where the deceased
was domiciled when they died.
- 17.4 Succession
is concerned with the distribution of the residue of the estate to those
entitled to inherit either under the will
or, if there is no will, under the
statutory distribution rules set out in the Administration Act. The Family
Protection Act 1955
(FPA) has been treated as a matter of succession
because it is concerned with the appropriate distribution of the net estate
(the remainder of the estate after debts are paid). In general, matters of
succession are governed by the “scission”
principle which
differentiates between movable and immovable property. The succession of
movable property is determined by
the law of the deceased’s domicile
(lex domicilii) whereas the succession to immovable property is
determined by the law of the country where the property is situated (lex
situs).
- 17.5 There are
also conflicts of law rules that apply to wills, including the creation and
revocation of a will, its validity,
and its construction. Apart from section
22 of the Wills Act, these rules are found in the common law. These rules
also rely
on the distinction between movable and immovable property and
frequently use domicile as the relevant connecting factor.
- 17.6 There are
some fundamental differences between the succession regimes in common law
countries and in civil law countries, which
may add complexity when a
cross-border element arises. For instance, Aotearoa New Zealand and other
common law countries distinguish
between administration and succession, while
civil law countries tend not to make the same distinction. Civil law
jurisdictions often
implement a system of forced heirship, whereas Aotearoa New
Zealand allows for greater testamentary freedom.
RECOMMENDATIONS IN THE PRA REVIEW
- 17.7 In
our review of the Property (Relationships) Act 1976 (PRA), we identified several
issues with the choice of law provisions
in that Act.5 Section 7 of the PRA confirms
that the Act applies to immovable property in Aotearoa New Zealand (not to
immovable property situated
overseas). In respect of movable property, it may
apply to property outside Aotearoa New Zealand if one of the partners is
domiciled
in Aotearoa New Zealand at the date of an application under the PRA,
at the date of any agreement between the partners relating
to the division of
their property or at the date of either partner’s death. The distinction
between movable and immovable property
prevents the resolution of property
disputes under a single legal regime. The domicile test for movable property is
problematic because
it enables the application of the PRA in circumstances where
Aotearoa New Zealand might not be the country most closely connected
to
the
- Re
Greenfield [1984] NZHC 230; [1985] 2 NZLR 662 (HC) at 666. However, it is perhaps
questionable whether Parliament intended for this to be the case given its
inclusion of s 3(5) of
the Law Reform (Testamentary Promises) Act 1949, which
contemplates the ability to extend directly or indirectly to property outside
Aotearoa New Zealand and is equivalent to s 7(1) of the Family Protection Act
1955.
- See
Te Aka Matua o te Ture | Law Commission Review of the Property
(Relationships) Act 1976 | Te Arotake i te Property (Relationships) Act
1976 (NZLC R143, 2019) at [19.1]–[19.89].
relationship. Section 7 also operates as a unilateral choice of law rule,
meaning that it only sets out when the PRA applies and
is silent on which
country’s laws apply when the PRA does not apply. This creates uncertainty
and risks leaving gaps in the
law if no other country’s law
applies.
- 17.8 Section 7A
applies where the partners have made an agreement on what law should be applied
to their property before or at
the time their relationship began. However,
it fails to give priority to the autonomy of partners by not allowing for
agreements
to be made during the relationship.6 Section 7A(1) gives partners
the right to agree that the PRA will apply to their property, even if neither
partner is domiciled
in Aotearoa New Zealand.7 The technical requirements in section
7A(2) may mean that many agreements, particularly those entered into outside
Aotearoa New
Zealand, may not be recognised even where the partners have
organised their affairs in reliance on those agreements.8
- 17.9 We
recommended the following:9
(a) Section 7 of the PRA
should be repealed, and in the absence of a valid foreign law agreement, the law
to be applied to property
disputes between partners shall be the law of the
country to which the relationship had its closest connection.
(b) There should be a presumption that the country to which a relationship
had its closest connection is the country where the partners
last shared a
common residence unless either partner satisfies a court that the relationship
had its closest connection with another
country.
(c) All of the partners’ property, including movable and immovable
property situated outside Aotearoa New Zealand, should be
subject to the
recommended rules of classification and division.
(d) The court’s broad ancillary powers to give effect to a division of
relationship property should expressly include the power,
in relation to
property situated outside Aotearoa New Zealand, to order a partner to transfer
the property or pay a sum of money
to the other partner.
(e) Section 7A of the PRA should be repealed, and new provisions made in
relation to foreign law agreements, including that the agreement
is valid under
the law of the country that is chosen under the agreement, or under the law of
the country with which the relationship
had its closest connection. The court
should, however, retain discretion not to give effect to a valid agreement if it
would be contrary
to New Zealand public policy.
- Our
review noted other issues with s 7A of the Act. An implicit choice of law is
insufficient to satisfy the technical requirements
in s 7A(2): see Te Aka Matua
o te Ture | Law Commission Review of the Property (Relationships) Act
1976
| Te Arotake i te Property (Relationships) Act 1976
(NZLC R143, 2019) at [19.45]–[19.50].
7 If such an election is made, it would
cover all property except for overseas immovable property.
- For
the full discussion of these issues, see Te Aka Matua o te Ture | Law Commission
Review of the Property (Relationships) Act 1976 | Te Arotake i te
Property (Relationships) Act 1976 (NZLC R143, 2019) at
[19.45]–[19.50].
- For
the full discussion of the recommendations, see Te Aka Matua o te Ture | Law
Commission Review of the Property (Relationships) Act 1976 | Te
Arotake i te Property (Relationships) Act 1976 (NZLC R143, 2019) at
[19.1]–[19.89].
ISSUES
The
scission principle
- 17.10 The
scission principle distinguishes between movable and immovable property,
requiring succession to movable property to be
governed by the law of the
deceased’s domicile (lex domicilii) and succession to immovable property
to be governed by the law
of the country where the property is located (lex
situs). This has been heavily criticised by legal commentators, law
reform bodies and the judiciary. 10
It is seen to cause significant anomalies, particularly in intestate
succession and FPA claims.
- 17.11 In cases
where someone has died without a will, the situs rule for immovables might mean
that a partner is entitled to two statutory
legacies, potentially at the expense
of other family members.11
- 17.12 In FPA
cases, the scission principle can frustrate the court’s ability to award
the level of provision it thinks fit or
to access the whole of the estate.12 For example, when making an
award under the FPA, a court may take account of the value of overseas immovable
property, but it cannot
make an award in respect of that property. 13 A claim under the FPA may
be made in respect of immovable property situated in Aotearoa New Zealand
(even if the deceased is
domiciled outside Aotearoa New Zealand on death)14 and to movable property
situated anywhere only if the deceased was domiciled in Aotearoa New
Zealand at the time of death.15
- 17.13 The
distinction is becoming increasingly artificial because of the ease with which a
person can convert movable property to
immovable or vice versa. 16
Characterisation of TPA and FPA claims
- 17.14 The
second issue relates to TPA claims being regarded as a matter of administration
and FPA claims being regarded as a matter
of succession. Neither statute
contains an express choice of law rule, and as a result the courts have had to
determine how to characterise
each claim. These claims are often pleaded in the
same case and the different
- Maria
Hook and Jack Wass The Conflict of Laws in New Zealand (LexisNexis,
Wellington, 2020) at [8.91] and [8.128]; Australian Law Reform Commission
Choice of Law (ALRC 58, 1992) at [9.4]–[9.6]; Paul Torremans (ed)
Cheshire, North & Fawcett Private International Law (15th ed, Oxford
University Press, Oxford, 2017) at 1352, discussing the reluctance of the judge
in the English case of Re Collens, decd [1986] Ch 505 to see the widow
succeed in both jurisdictions.
- Although
there is no New Zealand case law dealing with this issue, it has occurred in
England and Canada with varying results: see
for example Re Collens, decd
[1986] Ch 505; Re Thom (1987) 50 Man R (2d) 187; and Manitoba
(Public Trustee) v Dukelow (1994) 20 OR (3d) 378.
- Section
7(1) of the Family Protection Act 1955 provides that in cases where the
authority of the court does not extend or cannot directly
or indirectly be made
to extend to the whole estate, then to so much thereof as is subject to the
authority of the
court.
13 Re Bailey
[1985] 2 NZLR 656 (HC) at 658–660.
14 Re Butchart (Deceased) [1931] NZGazLawRp 89; [1932]
NZLR 125 (CA).
- Re
Terry (Deceased) [1950] NZGazLawRp 113; [1951] NZLR 30 (SC); Re Knowles (Deceased) [1995] 2
NZLR 377 (HC); and Roberts v Public Trustee of Queensland HC Christchurch
M316-97, 13 November
1997.
16 Australian Law Reform
Commission Choice of Law (ALRC 58, 1992) at [9.7].
categorisation can force artificial constraints on the court.17 Our preliminary view is that
the TPA should be repealed and a single cause of action included in the new Act
that provides a remedy
when a person has provided a benefit to the deceased or
the estate (see Chapter 5).
Relationship property claims
- 17.15 The
third issue arises in relationship property claims. As noted above, the
Commission has recommended that, in the absence
of a valid foreign law
agreement, the law to be applied to property disputes between partners on
separation should be the law of
the country to which the relationship had its
closest connection (with a rebuttable presumption that the country to which a
relationship
had its closest connection is the country where the partners last
shared a common residence). When considering the appropriate choice
of law rule
for family provision and contribution claims, we need to keep this
recommendation in mind.
PROPOSALS FOR REFORM
Choice
of law rules based on personal connecting factor
- 17.16 Our
preliminary view is that the scission principle should not apply to matters of
succession. Instead, we propose that the
choice of law rule for succession would
be based on a personal connecting factor.
- 17.17 Our
preference is that this connecting factor would be the deceased’s last
habitual residence, drawing on the definition
in the EU Succession Regulation.18 We propose that habitual
residence is defined in legislation19 to mean the country to which
the deceased had the closest and most stable connection. This would be
determined with reference to an
overall assessment of the specific circumstances
of the case, including the deceased’s social, professional and economic
ties
to the country, and the underlying aim of engaging the most relevant law
for that case to give effect to the interests of the deceased,
of people close
to the deceased and of creditors.
- Re
Greenfield [1984] NZHC 230; [1985] 2 NZLR 662 (HC), for example, involved claims under both
the FPA and the TPA by a son against his mother’s estate. Her estate
consisted of
movable property (money in a New Zealand investment fund) and
letters of administration were granted in New Zealand to the New Zealand
Insurance Co Ltd. The court found that the mother had died domiciled in
Australia. The applicable law to decide the succession of
this movable property
was therefore Australian law. For this reason, the FPA claim failed. However,
the finding that the TPA was
a matter of administration meant that the court was
entitled to make an order in the testamentary promises action notwithstanding
the Australian domicile of the deceased. See Maria Hook and Jack Wass The
Conflict of Laws in New Zealand (LexisNexis, Wellington, 2020) at
[8.127].
- See
art 21(1) and recitals 7 and 23–25 of Regulation 650/2012 on jurisdiction,
applicable law, recognition and enforcement of
decisions and acceptance and
enforcement of authentic instruments in matters of succession and on the
creation of a European Certificate
of Succession [2012] OJ L201/107. Article
21(2) provides an exception that another law should apply when it is clear from
all the
circumstances that the deceased was manifestly more closely connected to
another Member State. This exception clause has been criticised
because it
undermines the desire for habitual
residence to be determined using
an overall assessment focusing on the core of the relationship: see Alfonso-Luis
Calvo Caravaca “Article
21: General Rule” in Alfonso-Luis Calvo
Caravaca, Angelo Davì and Heinz-Peter Mansel (eds) The EU Succession
Regulation: A Commentary (Cambridge University Press, Cambridge, 2016) 298
at 318.
19 This may be within the new Act or
the Wills Act 2007, or both, depending on the scope of the choice of law
rule.
- 17.18 Relevant
criteria for evaluating the deceased’s ties to a country might include the
presence of the deceased’s family
members, the renting or purchase of a
house, schooling of children, fluency in the language, the existence of a
network of friends
and acquaintances, employment in a local company, attending
professional training or university courses and the opening of a bank
account.20 Whether the deceased intended
to reside indefinitely in a country would not be an isolated element to be
considered,21 but intention would be
demonstrated through the evidence of a deceased’s social, professional and
economic ties to the country.22
The passage of time will play a significant role in determining habitual
residence. For example, the more time a person spent residing
in a country, the
more likely it is that they will be determined habitually resident in that
country.23
- 17.19 A possible
alternative connecting factor is domicile. However, there are various reasons
why habitual residence is preferable.
First, habitual residence has
international recognition as an appropriate connecting factor for choice of law
in succession matters.
Second, habitual residence would be relatively easy to
understand and to establish.24
The flexible and contextual definition we propose would be applicable to
everyone without requiring variation for children or those
lacking mental
capacity.25 Conversely,
domicile is not a readily understood concept, as it relies on intricate rules to
determine both the domicile one inherits
as a child and the independent domicile
one may subsequently acquire.26
A new domicile is acquired by a combination of residence and an intention
to live permanently in a country. Determining that the requisite
intention has
been met may cause difficulties. An intention to return to a country might not
mean that the individual is most closely
connected with that country at the time
of their death.
- 17.20 We
acknowledge that domicile also has benefits. It is well established as a
connecting factor in New Zealand law, it would represent
the least amount of
change to the current law27
and it would be consistent with other related provisions, most notably
section 22 of the Wills Act. It was preferred by the Australian
Law Reform
Commission in 1992.28
- These
and additional criteria are discussed in Alfonso-Luis Calvo Caravaca
“Article 21: General Rule” in Alfonso-Luis
Calvo Caravaca, Angelo
Davì and Heinz-Peter Mansel (eds) The EU Succession Regulation: A
Commentary (Cambridge University Press, Cambridge, 2016) 298 at
303–304.
21 Compare s
9(d) of the Domicile Act 1976.
- See
the Supreme Court discussion about ordinary residence in Greenfield v Chief
Executive, Ministry of Social Development [2015] NZSC 139, [2016] 1 NZLR 261
at [36]–[37]. See also Maria Hook and Jack Wass The Conflict of Laws in
New Zealand (LexisNexis, Wellington, 2020) at [4.188].
- Alfonso-Luis
Calvo Caravaca “Article 21: General Rule” in Alfonso-Luis Calvo
Caravaca, Angelo Davì and Heinz-Peter
Mansel (eds) The EU Succession
Regulation: A Commentary (Cambridge University Press, Cambridge, 2016) 298
at 305–306.
24 The
flexible and contextual definition we propose would also avoid the need for an
exception clause.
- Compare
s 6 of the Domicile Act 1976 that prescribes the rules of law relating to the
domicile of children. Under the current law,
an individual who lacks the mental
capacity to form the necessary intention to acquire a new domicile may retain
the domicile inherited
as a child even if they have resided elsewhere for many
years. See generally Maria Hook and Jack Wass The Conflict of Laws in New
Zealand (LexisNexis, Wellington, 2020) at Chapter 4,
C.3.
26 See ss 6 and 7 of the
Domicile Act 1976.
27 Insofar as the current choice of law
rule for the succession of movable property is the law of the deceased’s
domicile.
28 Australian Law Reform Commission
Choice of Law (ALRC 58, 1992) at [9.9].
- 17.21 Our
preliminary view is that disputes over relationship property following the death
of a partner should also be governed by
the law of the deceased’s last
habitual residence to avoid fragmenting the law governing a deceased’s
estate. This would
differ from the choice of law rule recommended by the
Commission in the PRA review for determining the law applicable to relationship
property disputes for relationships that end on separation.29
- 17.22 It is
sensible that disputes between separating partners over their relationship
property are decided in accordance with the
law most closely connected to that
relationship, particularly given the relationship property is likely to be
situated in that country.
However, this may be more complicated on death as not
all countries have a relationship property regime similar to Aotearoa New
Zealand.
30 In other
jurisdictions, a surviving partner’s entitlement may be characterised as a
question of succession. If the same connecting
factor applies in both cases,
courts will not need to determine whether the issue should be characterised as a
question of relationship
property or as a question of succession. Under the
alternative approach, it is conceivable that a surviving partner could get a
windfall
if, for example, they receive a significant share of their
partner’s estate under the relationship property law of one country
and
also a significant share of the estate under the intestacy regime in another
country.
- 17.23 We propose
that courts have some flexibility to interpret or adapt the rules to harmonise
domestic and foreign law. For example,
this might include the ability to take
into account the completion of a relationship property division when
determining the estate
and the respective shares of the beneficiaries.31 It may be beneficial for a
rule on adaptation to be set out in legislation, such as that suggested by
Gerhard Dannemann:32
(1) in
the application and interpretation of both domestic and foreign law, courts must
seek to avoid a situation in which the combination
of rules from or decisions
taken in different jurisdictions produces an outcome which differs from a common
outcome for purely domestic,
but otherwise identical cases in the same
jurisdictions, unless an applicable rule intends such a different treatment.
(2) If such a different outcome cannot be avoided by application and
interpretation, courts may modify or set aside otherwise
applicable rules if
the outcome would otherwise violate human rights, in particular rights to
equal treatment.
- 17.24 We also
propose that a New Zealand court continues to have the power to refuse to apply
a foreign rule where doing so would
be contrary to public policy.
Scope of the choice of law rules
- 17.25 Our
preliminary view is that legislation should contain multilateral choice of law
rules that identify the most appropriate
system of law to govern the issue in
question, whether that is New Zealand law or foreign law.
- Te
Aka Matua o te Ture | Law Commission Review of the Property (Relationships)
Act 1976 | Te Arotake i te Property (Relationships) Act 1976 (NZLC
R143, 2019) at R130–R131.
- Meaning
that they do not have a regime that provides entitlements to a surviving partner
based on matrimonial/relationship property
rights on inter vivos
separation.
31 See recital 12
of Regulation (EU) 650/2012.
32 Gerhard Dannemann
“Adaptation” in Stefan Leible (ed) General Principles of European
Private International Law
(Wolters Kluwer, Alphen aan den Rijn (Netherlands), 2016) 331 at 342.
- 17.26 We are
considering two alternative options about the scope of the issues that would be
determined by the new rules. Neither
option would preclude rules of the lex
situs continuing to apply to the administration of estates.
Option One: new choice of law rules for matters of
succession excluding formal validity, capacity and interpretation
- 17.27 Under
Option One, the new Act would specify multilateral choice of law rules for
issues relating to intestate succession, material
and essential validity,
revocation of wills, relationship property claims and claims in the nature of
family provision and contribution.
- 17.28 Option One
would primarily relate to issues contained within the new Act or their
equivalent causes of action in foreign law,
but it would include two issues of
testate succession, namely material and essential validity and revocation.
- 17.29 The
principal function of the validity rules is to determine whether there are any
restrictions on the will-maker’s freedom
to dispose of their estate.
Awards under the FPA involve invalidating dispositions under the will and are
therefore treated as specific
applications of the general conflict rules
governing material or essential validity.33 Forced heirship rules are
also treated as affecting the validity of a will.34 It may create difficulties of
characterisation if the validity of a will continues to be governed by common
law choice of law rules
while family provision and contribution claims are
governed by the new choice of law rules.
- 17.30 It is
preferable that the question of whether a will has been revoked is governed by
the same law as that which determines whether
a will was validly made.
- 17.31 Option One
would remove the scission principle in respect of many succession issues.
However, there would still be some fragmentation
of the choice of law rules, and
this may result in difficulties for characterisation or different laws being
applied in the same
case. For example, a single case may raise issues of
capacity and inadequate provision for a family member, and these issues may
be
dealt with by the laws of two countries.
Option Two: new choice of law rules for all matters of
succession
- 17.32 Under
Option Two, all matters of succession would be governed by new choice of law
rules. These would be expressed in the proposed
new Act and in the Wills
Act.
- 17.33 We propose
that the new rules would therefore cover successions with or without a will,
relationship property claims on death
and other claims against estates. This
review is focused on claims against estates, but we have concluded that it would
be a wasted
opportunity not to seek feedback on the question of codifying choice
of law rules for succession more broadly. Option Two could therefore
also
include repealing the current choice of law rules for formal validity contained
in section 22 of the Wills Act and replacing
this with a choice of law rule
based on the habitual residence of the deceased.
- 17.34 This
proposal would have the benefit of codifying the choice of law rules in
succession, removing the scission principle and
replacing it with a personal
connecting factor, as
- Re
Roper (Deceased) [1927] NZLR 731 (SC) at 743; and Re Butchart (Deceased)
[1931] NZGazLawRp 89; [1932] NZLR 125 (CA). See also Marcus Pawson Laws of New Zealand
Conflict of Laws: Choice of Law (online ed) at [232]; and Maria Hook and
Jack Wass The Conflict of Laws in New Zealand (LexisNexis, Wellington,
2020) at [8.109].
34 Maria
Hook and Jack Wass The Conflict of Laws in New Zealand (LexisNexis,
Wellington, 2020) at [8.109].
discussed above. It would streamline the process for determining the applicable
law in succession-related matters. However, this
option would be a substantial
change from the current law. There may be unintended consequences associated
with altering the choice
of law rules relating to other issues of testate
succession. For example, the construction or interpretation of a will is
currently
governed by the law intended by the will-maker. This is presumed to be
the law of their domicile unless there is a clear indication
that the will-
maker intended a different law to be applied. At this stage, we do not propose
any change to the rule that the law
applicable to the interpretation of a will
should be that intended by the will-maker.35 Rather, the change would be
to the presumption that this is the law of the deceased’s
domicile.
- 17.35 Another
potentially significant change would be the effect on the current choice of
law rules around personal capacity to
make a will or take under a will.
Currently, personal capacity to make a will is governed by the scission
principle. Capacity to
make a will of immovable property is governed by the lex
situs, while capacity to make a will of moveable property is governed
by
the law of the will-maker’s domicile. Views differ about whether the point
in time to determine the applicable law that
decides capacity issues should be
the time of making the will or the time of death.36
- 17.36 Our
preliminary view is that the applicable law for determining capacity to make a
will would be the law of the deceased’s
habitual residence at the time of
making the will and that capacity to take under the will would be determined by
the law of the
deceased’s habitual residence at the time of
death.
Foreign law agreements
- 17.37 Our
preliminary view is that, during their lifetime, partners should be entitled to
agree that the law of a country other than
Aotearoa New Zealand should apply to
some or all of their property on death. These agreements could extend to
determining that the
law of a country other than Aotearoa New Zealand should
apply to any potential claims that the surviving partner might have against
the
deceased partner’s estate. These agreements should be subject to the same
validity requirements recommended in the PRA
review and the court should retain
residual jurisdiction to set them aside if applying the law of another country
or giving effect
to a foreign law agreement would be contrary to public
policy.
- 17.38 We do not
propose that family provision claims for children would be able to be the
subject of a foreign law agreement. Similar
to our views in Chapter 11 that
agreements purporting to contract out of a deceased’s obligations for
their minor children
and dependent disabled children should be prohibited, we
have concerns that a foreign law agreement would be made to undermine vulnerable
children’s rights to adequate provision. There are also practical and
legal issues about minor children’s capacity to
be party to such
agreements.
- There
may be merit in the Government undertaking a broader review of private
international law in Aotearoa New Zealand, which could
include further analysis
of conflict of law rules in testate succession.
- Lawrence
Collins (ed) Dicey, Morris & Collins on the conflict of laws
(15th ed, Sweet & Maxwell, London, 2012) at [27- 024]; Paul Torremans
(ed) Cheshire, North & Fawcett Private International Law (15th
ed, Oxford University Press, Oxford, 2017) at 1340; and Marin Davies and others
Nygh’s conflict of laws in Australia (10th ed, LexisNexis Chatswood
(NSW), 2020) at [38.9].
- 17.39 Our
expectation is that a foreign law agreement between the deceased and a
contributor would take the form of a contract between
these parties.
Enforcement
- 17.40 Our
preliminary view is that the court should have broad powers to give effect to
relationship property, family provision and
contribution awards, and this should
be expressed in statute. Where the estate property or relationship property
includes property
situated outside of Aotearoa New Zealand, the
court’s powers would allow them to make orders in respect of the
property
situated in Aotearoa New Zealand, taking account of the value of the
overseas property. The court would also have the power to
order a party to
transfer property or pay a sum of money to the other party (in personam
orders).
Renvoi
- 17.41 Our
preliminary view is that the new legislative provisions should not refer to the
application of renvoi.37 This
would allow the courts to determine the application of renvoi in a particular
case when relevant. As far as we are aware, renvoi
is not commonly applied in
Aotearoa New Zealand.38
Doctor Maria Hook and Jack Wass suggest that the doctrine is a
potentially useful tool for the courts to retain as it may serve a
jurisdictional function in cases where the Aotearoa New Zealand court seeks to
recognise, support or supplement the subject-matter
jurisdiction of the courts
of the lex causae.39 It may
assist with the enforcement of a New Zealand judgment in the foreign
jurisdiction.40
- 17.42 We
considered whether the new Act should expressly exclude renvoi. Under that
option, the new Act would provide that when a
New Zealand court determines that
the law of another country is to apply, that country’s conflict of law
rules are to be excluded.
However, a “no renvoi” solution may be
viewed as simplistic and ignoring that a different result would be achieved if
the case had been heard in the other country.
Jurisdiction
- 17.43 Our
preliminary view is that the new Act should confirm the broad subject-matter
jurisdiction of te Kōti Whānau |
the Family Court (the Family Court)
and High Court but should not otherwise include bespoke jurisdictional rules.41 We want to avoid provisions
that operate as a unilateral choice of law rule and a constrained jurisdictional
rule.42
- Renvoi
refers to the forum court’s application of the foreign court’s
choice of law rules. This might exclude the foreign
court’s approach to
renvoi (single or partial renvoi) or include it (double or total renvoi).
- Rina
See “Through the Looking Glass: Renvoi in the New Zealand
Context” [2012] AukULawRw 5; (2012) 18 Auckland U L Rev 57 at 57–58. We are not aware of
more recent case law applying renvoi. See also Maria Hook and Jack Wass The
Conflict of Laws in New Zealand (LexisNexis, Wellington, 2020) at
[4.52].
39 Maria Hook and Jack
Wass The Conflict of Laws in New Zealand (LexisNexis, Wellington, 2020)
at [8.54].
40 For example, where enforcement might
impact the title of immovable property in that country.
- See
Chapter 12 for discussion on the respective jurisdictions of te Kōti Whenua
Māori | the Family Court and te Kōti
Matua | the High Court.
- For
example s 7 of the Property (Relationships) Act 1976 and s 40 of the Draft
Succession (Adjustment) Act in Te Aka Matua o te Ture
| Law Commission
Succession Law: A Succession (Adjustment) Act (NZLC R39, 1997) at
108.
- 17.44 Personal
jurisdiction of the court should continue to be established in the usual manner
according to the Family Court Rules
and High Court Rules.43 We have heard that rule 6.27
of the High Court Rules may require amendment to enable service without leave of
the court. For example,
it appears that a personal representative would be
prohibited from serving an interested party overseas without leave where the
claim
relates to succession and the deceased was domiciled in Aotearoa New
Zealand but did not have land or other property situated here.44
Abolishing
the Moçambique rule
- 17.45 Our
preliminary view is that it would be desirable for the new Act to confirm for
the avoidance of doubt that the Moçambique rule45 has no application in matters
covered by that Act. Under this common law rule, the courts have no general
jurisdiction in proceedings
principally concerned with a question of title to,
or the right to possession of, foreign immovable property, subject to two
exceptions:
the court’s in personam jurisdiction to enforce contractual or
equitable obligations 46 and
the jurisdiction to determine questions of foreign title where they arise
incidentally for the purpose of administering an estate.
The rule has been the
subject of much criticism with critics concerned that it produces illogical and
unsatisfactory results.47 Te
Kōti Pīra | the Court of Appeal is sympathetic to the criticism of
the Moçambique rule. 48 The rule creates confusion,
with practitioners and courts sometimes struggling to determine whether a claim
falls within the rule
or its exception. 49 The Australian Law Reform
Commission considered that retaining the rule once the lex situs rule had been
abolished would be anomalous.50
- See
the court rules relevant to the service of proceedings under the PRA, FPA or
TPA: Family Court Rules 2002, r 130; District Court
Rules 2014, rr
6.23–6.27; and High Court Rules 2016, rr
6.27–6.36.
44 Maria Hook
and Jack Wass The Conflict of Laws in New Zealand (LexisNexis,
Wellington, 2020) at [8.85].
- Named
after the leading House of Lords decision British South Africa Co v Companhia
de Moçambique [1893] UKLawRpAC 53; [1893] AC 602 (HL). The rule was treated as applicable
in New Zealand in Re Fletcher Deceased [1920] NZGazLawRp 132; [1921] NZLR 46 (SC).
- The
leading authority is Penn v Lord Baltimore [1750] EngR 99; (1750) 1 Ves Sen 444 (Ch). See
also Birch v Birch [2001] NZHC 411; [2001] 3 NZLR 413 (HC) at [50].
- David
Goddard and Campbell McLachlan “Private International Law –
litigating in the trans-Tasman context and beyond”
(paper presented to New
Zealand Law Society seminar, August 2012) at 157. Goddard and McLachlan
reference Hesperides Hotels Ltd v Muftizade [1979] AC 508 (HL) at
543–544. In that case, Lord Wilberforce described a “massive volume
of academic hostility to the rule as illogical
and productive of
injustice”: at 536. See also Lucasfilm Ltd v Ainsworth [2011] UKSC
39, [2012] 1 AC 208 at [105].
- Most
recently, in Christie v Foster, the Court stated that the criticisms of
the rule appear to be well founded but that this was not the case to decide
whether the
Moçambique rule should be good law in New Zealand (as
the case was considering land in New Zealand, not foreign land): Christie v
Foster [2019] NZCA 623, [2019] NZFLR 365 at [75]. Similar sentiments were
expressed by te Kōti Pīra | the Court of Appeal in Schumacher v
Summergrove Estates Ltd [2014] NZCA 412, [2014] 3 NZLR 599.
- See
the comments in Maria Hook and Jack Wass The Conflict of Laws in New Zealand
(LexisNexis, Wellington, 2020) at [7.74]–[7.77], citing
Schumacher v Summergrove Estates Ltd [2013] NZHC 1387 and Burt v
Yiannakis [2015] NZHC 1174, [2015] NZFLR
739.
50 Australian Law Reform
Commission Choice of Law (ALRC 58, 1992) at [9.10].
SUMMARY OF PROPOSALS FOR REFORM
- The
applicable law for determining succession issues should be the deceased’s
last habitual residence.
- Habitual
residence should be the country with the closest and most stable
connection to the deceased determined with reference to an overall
assessment of the specific circumstances of the case and the underlying aim
of
engaging the most relevant law for that case. The court should consider a range
of factors including the deceased’s social,
professional, and economic
ties to the country and the importance of giving effect to the interests of the
deceased, of people close
to the deceased and of creditors.
- A rule of
adaptation should be included in legislation.
- Two options
are proposed for the scope of the choice of law rules:
- Option
One – the new Act would specify multilateral choice of law rules for
issues relating to intestate succession, material
and essential validity,
revocation, relationship property claims, and claims in the nature of family
provision and contribution.
- Option
Two - all matters of succession (including potentially the formal validity rules
contained in section 22 of the Wills Act)
would be governed by new choice
of law rules contained in the new Act and the Wills Act.
- Partners
should be entitled to agree that the law of a country other than Aotearoa
New Zealand should apply to some or all of their property on death provided the
agreement meets the validity requirements recommended
in the PRA review and
giving effect to the foreign law agreement would not be contrary to public
policy. These agreements could extend
to determining that the law of a country
other than Aotearoa New Zealand should apply to any potential claims that the
surviving
partner might have against the deceased partner’s estate.
- Family
provision claims for children or contribution claims would not be able to be
the subject of a foreign law agreement.
- A court
should have broad powers to give effect to relationship property, family
provision and contribution awards, and this should be expressed in statute. The
court’s powers would allow them to make orders
in respect of property
situated in Aotearoa New Zealand, taking account of the value of the overseas
property or to order one
party to transfer property or pay a sum of money to
the other party (in personam orders).
- The courts
should continue to have power to determine the application of renvoi in a
particular case when relevant.
- The new Act
should confirm that the Moçambique rule has no application in
matters covered by that legislation.
QUESTIONS
|
|
Q85
|
Do you agree with the issues we have identified?
|
|
Q86
|
Are there other issues with the law we have not identified?
|
|
Q87
|
What are your views on the proposals for reform?
|
|
Q88
|
Do you have
|
any other suggestions for reform?
|
|
CHAPTER 18
Other
reform issues
IN THIS CHAPTER, WE CONSIDER:
- the need for
education about the law relating to succession;
- revocation of
wills upon marriage or entering a civil union and revocation of certain
dispositions under a will at the end of a marriage
or civil union;
- the
court’s power to declare wills valid when they do not comply with the
requirements of the Wills Act 2007;
- the application
of the law relating to succession to multi-partner relationships;
- the threshold
for administering an estate without the need for a grant of probate or letters
of administration; and
- claims against
an estate and the availability of social security.
THE
NEED FOR EDUCATION ABOUT THE LAW RELATING TO SUCCESSION
- 18.1 The low
levels of awareness and understanding of the law relating to succession, both
among the public and professional advisers,
has been a key theme emerging from
our research and preliminary engagement.
- 18.2 For
example, some lawyers have told us that will-makers, their surviving partners
and many lawyers do not have much knowledge
of the Property (Relationships) Act
1976 (PRA) and how it applies on death. Just over half (57 per cent) of the
respondents in the
Succession Survey were “fully aware” family
members can challenge a will if they think it does not properly provide for
them.1 Respondents without a
will (particularly younger respondents without a will) had lower levels of
awareness.2 Similarly, we
have been told that many people have little or no awareness of other matters
such as:
(a) the importance of having a will and the way an
intestate estate will be distributed;
- Ian
Binnie and others Entitlements to deceased people’s property in New
Zealand: Public attitudes and values – A general population survey
(Te Whare Wānanga o Ōtākou | University of Otago, research
report to the Michael and Suzanne Borrin Foundation, Dunedin,
April 2021) at
[154].
- Ian
Binnie and others Entitlements to deceased people’s property in New
Zealand: Public attitudes and values – A general population survey
(Te Whare Wānanga o Ōtākou | University of Otago, research
report to the Michael and Suzanne Borrin Foundation, Dunedin,
April 2021) at
[155].
(b) the consequences of holding property in such a way that it
does not fall into an estate, such as jointly owned assets or property
settled
on trust; and
(c) how to make or resolve claims against estates.
Proposal for reform
- 18.3 While
the new Act should improve the accessibility of the law by drawing together
relevant provisions under one statutory regime,
we consider further education
for the public and professional advisers is needed.
- 18.4 In our
preliminary view, the Government should consider ways to improve understanding
of the law, or the new Act if enacted.
In the PRA review, we made a similar
recommendation and suggested several steps the Government could take:3
(a) A one-off public
education campaign, which could be timed to coincide with the implementation of
the recommendations in the review,
if accepted.
(b) Education in secondary school programmes and for professionals such as
financial planners, business advisers and chartered accountants.
(c) The provision of information at different points of interaction with
government departments, such as when applying for a marriage
or civil union
licence, when applying for state benefits and when applying for New Zealand
residency.
(d) Introducing requirements on registered professionals or organisations
such as real estate agents and banks to provide some form
of prescribed
information to clients when buying or selling property, applying for credit or
opening joint bank accounts.
(e) Producing and providing information online, in Family Courts around
Aotearoa New Zealand and to community organisations such as
Citizen Advice
Bureau and Community Law Centres.
- 18.5 Given the
overlap between succession law and relationship property law, the Government
could consider including education about
the new Act and wider succession law
when taking these steps.
SECTIONS 18 AND 19 OF THE WILLS ACT 2007
- 18.6 Section
18 of the Wills Act 2007 revokes a person’s will in its entirety when they
marry or enter a civil union. The rule
does not apply if it is clear from the
will or the surrounding circumstances that the will was made in contemplation of
the marriage
or civil union.
- 18.7 Section 19
of the Wills Act applies when the court grants a dissolution or separation order
under the Family Proceedings Act
1980 in respect of a marriage or civil union.
The section applies to certain provisions relating to the will-maker’s
former
spouse or civil union partner in the will-maker’s will,
namely:
(a) the appointment of the spouse or partner as executor or
trustee of the will;
- Te
Aka Matua o te Ture | Law Commission Review of the Property (Relationships)
Act 1976 | Te Arotake i te Property (Relationships) Act 1976 (NZLC
R143, 2019) at R5 and [2.72].
(b) the appointment of the spouse or partner as a trustee of
property disposed of by the will to trustees on trust for beneficiaries
who
include the spouse or partner’s children;
(c) a disposition to the spouse or partner, except for a power of appointment
exercisable by the spouse or partner in favour of the
spouse or partner’s
children; or
(d) the disposition for the payment of a debt secured on –
(i) property that belongs to the spouse or partner; or
(ii) property that devolved by survivorship on the spouse or partner.
- 18.8 Section
19(4) provides that a provision of this kind is void. The will must be read as
if the former spouse or partner died immediately
before the will-maker. The
provision will remain, however, if the will makes it clear the will-maker
intended the provision to
be effective even if a court grants a separation or
dissolution order.
- 18.9 While
sections 18 and 19 are located within the Wills Act, we consider they warrant
our consideration in this review. Both provisions
govern a person’s
entitlement to a deceased’s estate solely based on the nature of the
relationship (or termination of
relationship) with the deceased. Our
consideration of relationship property law on the death of a partner would be
incomplete without
considering these provisions.
Issues
- 18.10 Section
18 presumes that a marriage or civil union is such a significant event in a
person’s life that any prior will
they had must no longer reflect their
testamentary intentions.4 It
assumes that the intestacy rules more closely reflect how the will-maker would
wish their estate to be distributed.
- 18.11 We doubt
these presumptions are accurate in contemporary Aotearoa New Zealand. It is
now common for most couples to have lived
for some time in a committed de facto
relationship before choosing to marry or enter a civil union.5 A marriage is therefore often
seen as a formalisation of an existing relationship rather than a material
change in commitment and
obligation. 6 Most individuals we heard
from during our preliminary engagement agreed section 18 requires reform as it
no longer represents how
people live their lives and organise their
relationships.
- 18.12 We are
also mindful that section 18 does not apply to people who enter long-term de
facto relationships. That may mean the
law provides different outcomes for
relationships
- See
Te Aka Matua o te Ture | Law Commission Succession Law: Wills Reforms
(NZLC MP2, 1996) at [120]–[121], which informed the Wills Act
2007.
- Te
Aka Matua o te Ture | Law Commission Relationships and Families in
Contemporary New Zealand | He Hononga Tangata, he Hononga Whānau i
Aotearoa o Nāianei (NZLC SP22, 2017) at 17.
- See
for example the recent case Newton v Newton [2020] NZHC 3337. A couple
had executed wills while in a committed de facto relationship. Six years later,
the couple married, not realising the law
revoked their previous wills.
Nevertheless, the Court accepted that at the time the partners made their wills,
they contemplated
the relationship would endure and would have the status of
marriage: at [4].
that are substantively similar, which risks being discriminatory on the grounds
of marital status under human rights law.7
- 18.13 Section 19
presumes that the will-maker would have wished to cut ties with their former
spouse or civil union partner when the
relationship is formally dissolved. Our
preliminary view is that this is a reasonable assumption to make. However, we
consider there
are two main issues with section 19. First, like section 18,
section 19 does not apply to de facto relationships meaning the law
may provide
different outcomes for relationships that are substantively similar. Second, we
anticipate that there will be many
cases where people will have wished to
cut ties with their former partner before they obtain a formal separation or
dissolution
order from the court. It may be some time after separation that
former partners apply for formal orders.
Proposals for reform
- 18.14 Because
we are not satisfied that a marriage or civil union represents a point in time
when most will-makers would wish to change
who should or should not benefit
under their will, we propose section 18 of the Wills Act should be
repealed.
- 18.15 We propose
two amendments to section 19. First, section 19 should apply to the end of all
relationship types, namely marriages,
civil unions and de facto relationships.
It should not be necessary for the de facto relationship to have lasted three
years. A three-year
qualifying period is generally used to determine eligibility
to entitlements to relationship property and in an intestacy.8 The three-year period is a
measure of commitment and acts against the retrospective imposition of property
sharing obligations on
unsuspecting partners.9 In this context, rather than
determine eligibility, the focus is whether the will- maker would have wished to
cut ties with their
partner because of the separation. It would be odd if gifts
to a former partner of a three-year relationship were rendered void but
gifts to
a former partner of a two-year relationship remained.
- 18.16 We note
that the Wills Act defines de facto relationship by incorporating the definition
of de facto relationship under section
29A of the Interpretation Act 1999, which
refers to two people living together in the nature of marriage or civil union.
The PRA’s
definition, which the Administration Act 1969 incorporates,
differs as its central concept is two people who “live together
as a
couple”. Our preliminary view is that a uniform definition of de facto
relationship across these closely related statutes
(including the new Act) is
desirable and the Government should consider revising the definition of de facto
relationship in the Wills
Act.
- 18.17 The second
amendment we propose is that section 19 apply two years after the point when
the partners in any relationship
type ceased to live together in a relationship.
We consider this point in time is more likely to reflect most people’s
intentions
as to when they would wish their will to no longer provide for
their former partner, regardless of whether a formal separation
order or
dissolution has been obtained. It also aligns with our
- Section
19(1) of the New Zealand Bill of Rights Act 1990 and s 21(1)(b) of the Human
Rights Act 1993 together affirm the right to
be free from discrimination on the
grounds of marital status, including being married, in a civil union or in a de
facto relationship.
8 See the
discussion of qualifying relationships in Chapters 3 and 6.
- Te
Aka Matua o te Ture | Law Commission Review of the Property (Relationships)
Act 1976 | Te Arotake i te Property (Relationships) Act 1976 (NZLC
R143, 2019) at [6.9].
proposals in Chapters 3, 4 and 6 that former partners cease to be eligible
under the new Act for relationship property entitlements,
family provision
awards and entitlements in an intestacy two years after
separation.
- 18.18 In Chapter
8 we ask whether these proposals for the reform of sections 18 and 19 of the
Wills Act are problematic for Māori
customary
marriages.
POWER TO VALIDATE WILLS
- 18.19 During
our preliminary engagement, several people raised issues with the
court’s validation power under section 14
of the Wills Act. Section 14
applies to a document that appears to be a will but does not comply with the
requirements for a valid
will set out in section 11 of the Act. The court is
empowered under section 14 to make an order declaring the document valid, if
it
is satisfied that the document expresses the deceased person’s
testamentary intentions.
- 18.20 The court
may only validate a non-compliant will when there is a “document”,
which is defined under the Wills Act
as “any material on which there is
writing”. This precludes the court validating any evidence of testamentary
intention
in which there is not writing, such as oral or video recordings. Many
individuals we heard from thought this was unsatisfactory.
For example, the
situation could arise where the court could not give effect to a video recording
of a deceased’s explanation
of their testamentary intentions, but had
someone made written notes instead (arguably far less reliable than a video
recording),
the court could exercise its validation power.
- 18.21 Our
preliminary view is to note this issue as a matter the Government may wish to
consider further, without making specific
recommendations for reform. Section 14
is essentially about will-making, specifically when a record of the
deceased’s testamentary
intentions can be declared to be a will. The focus
of this review is people’s substantive rights to an estate, assuming a
valid
will either exists or does not exist. We comment further on the
court’s validation power in the context of ōhākī
(the
Māori practice of making oral wills) in Chapter 8.
MULTI-PARTNER RELATIONSHIPS
- 18.22 The
PRA is based on the notion of “coupledom”.10 Relationship property
entitlements only arise in marriages, civil unions and de facto relationships
that are intimate relationships
between two people. Although the PRA
contemplates relationship property entitlements arising in the context of
contemporaneous relationships
(see Chapter 3), relationship property law does
not apply to intimate relationships involving three or more people.11 Instead, people in multi-partner
relationships must rely on the general remedies in property law or
equity.
- Te
Aka Matua o te Ture | Law Commission Review of the Property (Relationships)
Act 1976 | Te Arotake i te Property (Relationships) Act 1976 (NZLC
R143, 2019) at [7.62], citing the discussion in Margaret Briggs "Outside the
Square Relationships" (paper presented to Te Kāhui
Ture o Aotearoa | New
Zealand Law Society PRA Intensive, October 2016) at
135.
11 Paul v Mead
[2020] NZHC 666, (2020) 32 FRNZ 513.
- 18.23 In the PRA
review, we discussed how the PRA does not apply to multi-partner
relationships and concluded that the property
sharing regime should not be
extended to multi-partner relationships at this time.12 We reasoned that extending
the regime to multi- partner relationships would be a fundamental shift in
policy and should be considered
within a broader context involving more
extensive consultation about how family law should recognise and provide for
adult relationships
that do not fit the mould of an intimate relationship
between two people. Extending the property sharing regime to multi-partner
relationships would also be a complex exercise. Careful consideration would need
to be given to determining when and how multi-partner
relationships should
attract property consequences and what those property consequences should
be.
- 18.24 Our
preliminary view is to repeat the recommendations from the PRA review in the
final report in this review. The new Act should
be premised on an intimate
relationship between two people. We observed in the PRA review that it is likely
multi-partner relationships
will become more prevalent in the future.13 The Government should
consider undertaking research in this area to support any future law reform
relating to multi-partner relationships.
- 18.25 Lastly, we
note that partners to a multi-partner relationship can make wills and contracts
through which they can arrange how
property is to be distributed on a
partner’s death. As discussed above, public education may be
useful.
DISTRIBUTING AN ESTATE WITHOUT PROBATE OR LETTERS OF
ADMINISTRATION
- 18.26 During
our preliminary engagement, we heard concerns that the monetary threshold for
administering an estate without the need
for a grant of probate or letters
of administration is too low.
- 18.27 Section 65
of the Administration Act provides that certain entities, such as superannuation
funds, banks, or the employer of
the deceased, can pay money to certain
relatives of the deceased, such as a surviving partner, without administration
of the estate
needing to be obtained. The amount of money must not exceed the
prescribed amount, which is currently set at $15,000.14
- 18.28 Trustee
companies hold powers under the Trustee Companies Act 1967 to administer
small estates without a grant of administration.15 Instead, the trustee
companies file with te Kōti Matua | the High Court an election to
administer the estate. The requirements
for exercising this power are:16
- Te
Aka Matua o te Ture | Law Commission Review of the Property (Relationships)
Act 1976 | Te Arotake i te Property (Relationships) Act 1976 (NZLC
R143, 2019) at R35 and [7.75]–[7.77].
- Te
Aka Matua o te Ture | Law Commission Review of the Property (Relationships)
Act 1976 | Te Arotake i te Property (Relationships) Act 1976 (NZLC
R143, 2019) at [7.66] and
[7.77].
14 Administration
(Prescribed Amounts) Regulations 2009, reg 4.
- Trustee
companies include Trustees Executors Ltd, AMP Perpetual Trustee Company NZ Ltd,
PGG Trust Ltd, New Zealand Permanent Trustees
Ltd, and The New Zealand Guardian
Trust Company Ltd: Trustee Companies Act 1967, s 2 definition of
“trustee
company”.
16 Trustee
Companies Act 1967, s 36(1).
(a) the deceased died either testate or intestate leaving
property situated in Aotearoa New Zealand;
(b) the gross value of the property does not exceed $120,000 (or such higher
amount prescribed by regulations);
(c) no person has obtained a grant of administration; and
(d) the trustee company would, in any case, be entitled to obtain a grant
of administration.
- 18.29 Public
Trust enjoys similar powers under the Public Trust Act 2001, again provided
the gross value of the estate does not
exceed $120,000.17
- 18.30 In our
preliminary engagement, several people stressed that it should be possible to
deal with estates of greater value without
the need to obtain probate or letters
of administration. Because the issue concerns matters of probate and
administration rather
than substantive rights to an estate, our preliminary view
is that we should note these concerns and suggest the Government considers
the
issue further.
THE FAMILY PROTECTION ACT 1955 AND SOCIAL SECURITY
- 18.31 Section
203 of the Social Security Act 2018 applies where a person has applied for or
is in receipt of a benefit under the
Act and they have a tenable claim under the
Family Protection Act 1955 (FPA) but have failed to take reasonable steps to
advance
the claim. The Ministry of Social Development may refuse to grant the
benefit, grant it at a reduced rate or cancel a benefit already
granted.
- 18.32 The
predecessor provision to section 203 was first enacted in section 18(3) of the
Social Security Amendment Act 1950. Parliamentary
debate during the
enactment explained that the provision was aimed at addressing what were known
as “social security wills”.18 Will-makers were making wills that left
the substantial part of their estates to their adult children, leaving their
surviving spouse
very little so they qualified for social security benefits.19
Proposal for reform
- 18.33 In
our preliminary view, section 203 should be repealed. We doubt the problems that
existed in 1950 when the provision was first
introduced cause the same issues
today.20 In recent times,
the provision has rarely come before the courts, suggesting people are rarely
declined social security entitlements
for failing to pursue an FPA claim.
Further, there may be good reasons why a person may decide not to make a claim
against an estate.
For example, they may wish to preserve family relationships
and avoid dispute, or their relationship with the deceased may have been
of a
such a nature that they feel uncomfortable seeking support from the
estate.
17 Public Trust Act 2001,
s 93.
18 (25 October 1950) 292 NZPD
3726–3727.
19 (25 October 1950) 292 NZPD
3726–3727.
- A
potential issue may concern eligibility for residential care home subsidies, but
they are governed by the Residential Care and Disability
Support Services Act
2018 rather than the Social Security Act 2018.
QUESTIONS
|
|
Q89
|
Do you agree with the issues we have identified?
|
|
Q90
|
Are there other issues with the law we have not identified?
|
|
Q91
|
What are your views on the proposals for reform?
|
|
Q92
|
Do you have
|
any other suggestions for reform?
|
|
Office: Level 9, Solnet House, 70 The Terrace, Wellington 6011
Telephone: 04 473 3453 - Email:
com@lawcom.govt.nz Website: www.lawcom.govt.nz
ISBN 978-0-9951291-0-8 (Online)
ISSN 1177-7877 (Online)
This title may be cited as NZLC IP46.
Copyright © 2021 Te Aka Matua o te Ture | Law
Commission.
This work is licensed under the Creative Commons Attribution 4.0
International licence. In essence, you are free to copy, distribute
and adapt
the work, as long as you attribute the work to Te Aka Matua o te Ture | Law
Commission and abide by other licence terms.
To view a copy of this licence,
visit https://creativecommons.org/licenses/by/4.0
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/other/lawreform/NZLCIP/2021/46.html