Succession and trust law changes (Trust eSpeaking, Issue 32, Autumn 2021)

8 minutes to read

Extension of Māori Land Court jurisdiction

A significant change to the succession laws relating to Māori land1 came into force on 6 February 2021 (Waitangi Day).

Te Puni Kōkiri states that the amendments to Te Ture Whenua Māori Act 1993 are intended to better support whānau to succeed to their land by:

  • Enabling simple and uncontested succession applications to be dealt with by a Māori Land Court registrar, instead of going through a full court hearing process in front of a judge (though applicants can still elect to go through the full court process)

  • Allowing a landowner’s descendants to immediately succeed to their Māori land interests on the death of the landowner (instead of having to wait until the death, new relationship or surrender of interests of the landowner’s spouse who may not have any connection to the land), while still allowing the surviving spouse or partner a lifetime right to income from the land as well as the right to occupy a family home on the land 

  • Clarifying that the tikanga of the relevant iwi or hapū will determine whether whāngai are eligible to succeed to a land interest, and

  • Giving whāngai children the right to receive income or grants from the land and/or the right to occupy the family home, even where the relevant tikanga does not recognise a relationship of descent.

Te Ture Whenua Māori (Succession, Dispute Resolution, and Related Matters) Amendment Act 2020 also amends the Family Protection Act 1955 and the Law Reform (Testamentary Promises) Act 1949, by giving the Māori Land Court jurisdiction to hear claims under those Acts in respect of Māori freehold land.

The amendments to Te Ture Whenua Māori Act 1993, the Family Protection Act 1955, and the Law Reform (Testamentary Promises) Act 1949 are in sympathy with the broader review of succession law that is being undertaken by the New Zealand Law Commission Te Aka Matua o te Ture. In particular, the amendments balance the interests of a landowner’s descendants to take an active part in decisions relating to the land, while still respecting and protecting the interests of spouses and other claimants.

Treaty settlements

In 2019 the Māori Appellate Court issued a decision of great interest to trustees and beneficiaries alike2. At issue was s 236(1)(c) of Te Ture Whenua Māori Act 1993, which states that the Māori Land Court has jurisdiction over ‘every other trust’ constituted in respect of any ‘General land owned by Māori’. The question was whether that section extended to common law trusts established to receive Treaty settlement assets, which include not only land but also money or other types of assets.

The phrase ‘General land owned by Māori’ is a defined term in the Act. It means ‘General land that is owned for a beneficial estate in fee simple by a Māori or a group of persons of whom a majority are Māori’.  The Māori Appellate Court found that a trust constituted to receive the proceeds of a Treaty settlement, that includes at least one parcel of General land, comes within s 236(1)(c) of the Act and. is therefore within the Māori Land Court’s jurisdiction (in addition to every other common law ‘Mum and Dad’ trust that holds a family home, where the majority of beneficiaries are Māori).

Looking ahead

It will be interesting to see how the Māori Land Court interprets the existing succession legislation in its unique context, and how this will inform the ongoing review of succession law in this country by the New Zealand Law Commission Te Aka Matua o te Ture.

There will also be, no doubt, a growing volume of trust decisions from the Māori Land Court once beneficiaries realise the superior accessibility and cost effectiveness3 of the Māori Land Court compared with the High Court.

1 Te Ture Whenua Māori (Succession, Dispute Resolution, and Related Matters) Amendment Act 2020.
2 Moke v Trustees of Ngāti Tarāwhai Iwi Trust 2019 Māori Appellate Court MB 265.
3 A hearing fee of $60 compared with $1,350 in the High Court.