IN THE MAORI LAND COURT OF NEW ZEALAND AOTEA DISTRICT A RESERVED DECISION OF CHIEF JUDGE J V WILLIAMS

Transcription

1 190 Aotea MB: 74 IN THE MAORI LAND COURT OF NEW ZEALAND AOTEA DISTRICT A UNDER AND UNDER IN THE MATTER OF Section 78A(7) of the Maori Affairs Amendment Act 1976 Sections 45 and 165 ofte Ture Whenua Maori Act 1993 The estate of Harry or Haruka Rarere MERE TEIRI KOHAI HOHIPA Applicant Hearing: Judgment: 26 January 2007 at 181 Aotea MB March 2007 at 183 Aotea MB June 2007 at 187 Aotea MB 197 (Heard at Wellington) 14 August 2007 RESERVED DECISION OF CHIEF JUDGE J V WILLIAMS Introduction [I] Mere Hohipa made this application to succeed to the interests of her father, Harry or Haruka Rarere who died on 27 September Mere makes the application on behalf of Harry's seven children, as set out in Schedule 4, and entitled by virtue of Harry's will dated 20 August [2] At the hearing on I June 2007 at 187 Aotea MB 197, Mere and the others were confused as to whether they had already succeeded to some interests, and also because some ofhalty's interests were missing. I therefore adjoumed the application to check what interests had already been to succeeded to, and to determine what orders were required. I have completed this check and my decision now follows. MERE TEIRl KOHAI HOHIPA MLC A (14 August 2007] \v

2 r 190 Aotea MB: 75 Han-y's bundles of interests [3] Some of Harry's interests have been vested in his children, though the majority have not. For present plllposes, Harry's interests are best conceptualised in three bundles, defined by whom currently holds those interests. The three bundles are held by: i) Harry's late wife; ii) Harry's estate; and iii) HatTY'S seven children. [4] I have listed the land interests each bundle represents III a corresponding schedule to this decision, for example, Schedule I = Bundle 1. [5] Bundle 1 represents Harry's interests held by his wife, Mary Tuhi Rarere (deceased). Mary holds life interests to tllis bundle as vested in her on 12 December 1988 at 15 Tairawlliti Registrar's MB 86, pursuant to Harry's will. Despite BaITY's seven children being listed as remaindermen, these interests remain in her name. [6] Bundles 2 and 3 represent interests attributed to HaITY after his death. Han'Y received Bundle 2 from his grandfather, Moa Rarere, vested in Harry'S estate on 3 October 1991 at 88 Wairoa MB 314. [7] Bundle 3 represents Harry's interests received from his mother and father, Rapuaiterangi Kara and Hami Moa Rarere. Succession to these interests occurred on 4 December 1997 at 98 Wairoa MB 105. However, as both Harry and his wife had deceased at that time, the court vested these interests in his seven children, and therefore 110 further orders are required. \~

3 190 Aotea MB: 76 Notes on interests (8) Harry's interests in patiicular blocks have been complicated by various court orders. To clarify these complications, which are the basis for the orders I make below, I make the following notes. Opal/lama MR sec 65, 66 & 79C (9) Harry's mother's interests were vested in him on 21 October 1985 at 11 Tairawhiti Registrar's MB 283, including interests in this block. When Harry's estate was probated and his interests vested in the executrix on 22 September 1988 at 14 Tairawhiti Registrar's MB 306, it seems this interest was recorded as 'Opoutama MR sec 65, 66 & 69'. (10) 'Opoutama MR sec 65, 66 & 69' is incorrect as Opoutama MR sec 69 is another distinct block. It seems that this is a typographical enor, which I will correct. [11) I note that this block is not included in Bundle 1, the reasons for which follow under the Mahanga 1 C 1 A2 note. Mahanga lc1a2 & others (12) This interest represents an aggregation of various blocks. In terms of Harry's interests the aggregated block includes Mahanga ICIA2; Opoutama MR sec 65, 66 & 79C; Opoutama MR sec 17A; and, Umuango ID. (13) While the orders at 15 Tairawhiti Registrar's MB 86 state that Harry's interests in Opoutama MR sec 65, 66 & 79C; Opoutama MR sec 17 A; and, Umuango 1 D are vested in his wife, these should not have been included because of the aggregation, and should be deleted from that court record. (14) The aggregated block (as named above) encompasses the interests set out at para (13) and is included in Bundle 2, still in Harry's name. \J

4 190 Aotea MB: 77 Mahanga JDJ [15) For clarity I note that although this interest is in Bundle 2, it was received at the same time all Bundle 3 interests were vested directly to Harry's seven children. However, in terms of this interest the orders made determined and vested the interests in Harry and his siblings, without substitution of issue. OpOlllama MR sec 22, 23 & 24 [16) Here I simply highlight that there are interests in this land in Bundles 2 and 3. Takararoa 3 [17) Harry' s interest in this land is currently recorded as It seems that.005 of this interest is in Bundle 1 (interest received from his mother at 11 Tairawhiti Registrar's MB 283), while the remaining is in Bundle 2 (interests from his grandfather at 88 Wairoa MB 314). Discussion [18) As 1 indicated in Court on 1 June 2007, I confirm that I have no problems in making these orders, especially in such cases where all the family are in agreement. All seven children as set out in Schedule 4 are entitled to succeed to Harry's interests. Harry's death predates Te Ture Whenua Maori Act 1993 and therefore section 78A of the Maori Affairs Amendment Act 1967 applies, meaning Harry's will is valid regardless of to whom he wills his interests. The COUli has no jurisdiction to not comply with his will. [19) The interests in Bundle 2, still in Harry's name, can therefore be vested in hi s seven children pursuant to section 78A. [20) As for the Bundle I interests, held by Harry's late wife as life interests. Her life interest invokes section 150D of Te Ture Whenua Maori Act 1993 and therefore vesting from her 'representative' or 'kaitiaki' capacity can follow pursuant to

5 190 Aotea MB: 78 section 165. Put simply, I am happy to vest the Bundle 2 interests in Harry's seven children also. (21) I am satisfied that the requirements under the relevant succession provisions are met. Orders (22) Accordingly, I now make the following orders pursuant to Te Ture Whenua Maori Act 1993 : a) An order pursuant to section 37(3) varying the application to one for orders under sections 45, 165 of Te Ture Whenua Maori Act 1993, and section 78A of the Maori Affairs Amendment Act b) An order pursuant to section 44(1) amending the orders at 14 Tairawhiti Registrar's MB 306 and 15 Tairawhiti Registrar's MB 86 to read "Opoutama MR sec 65, 66 & 79C", not "Opoutama MR sec 65, 66 & 69"; c) An order pursuant to section 44(1) amending the orders at 14 Tairawhiti Registrar's MB 306 and 15 Tairawhiti Registrar's MB 86 by deleting the interests in: i) Opoutama MR sec 17 A; ii) Opoutama MR sec 65, 66 & 79C; and iii) Umumango!D. d) An order pursuant to secti on 47(4) to make all consequential amendments. e) An order pursuant to section 165 vesting the interests held by Mary Tuhi Rarere (Harry's wife), which she holds as life interests, and as \V

6 190 Aotea MB: 79 set out at Schedule 1, into the deceased's seven children as set out in Schedule 4 in equal shares. [23] And, an order pursuant to section 78A of the Maori Affairs Amendment Act 1967 vesting the interests held by the estate of Harry or Haruka Rarere, being those interests set out in Schedule 2, in the deceased's seven children as set out in Schedule 4 in equal shares. [24] A copy of this decisions is to go to all parties. ~ _/1 LA-~-----, J V Williams CHIEF JUDGE

7 190 Aotea MB: 80 SCHEDULE 1 BLOCK SHARES 1. Mahanga 2E Nuhaka 2C2X & others Nuhaka 2B2X & others Nuhaka 2C2W Nuhaka 2D2N5B Nuhaka 2D2N7D Opoutama MR sec I Opoutama MR sec Rangataua Takararoa I!. Nuhaka 2A4A IIB Kaiwaitau I Mahanga IY.167 SCHEDULE 2 BLOCK SHARES 1. Kaiwaitau Mahanga ICIA Nuhaka 2C2WIOO Opoutama MR sec 22,23, Rangataua Takaroa Umuango laic Mahanga IDI.0 14 SCHEDULE 3 BLOCK SHARES 1. Nuhaka 2A4AI4BI Nuhaka 2A4E Mahanga I C I E Opoutama MR sec 22, 23,

8 190 Aotea MB: 81 SCHEDULE 4 NAME 1. Mere Teiri Kohai Hohipa 2. Olive Mary Treasure Walker 3. Wikitoria Alice Singleton 4. Robin Lee Haruka Rarere 5. Mere Te Iwi Ngaro Rarere 6. Andrew Julian Rarere 7. Alice Viki Walker fa. fd. fa. m.a. f.a. m.a. fa. (natural child)