Sharples Pita: Wills Bill — First Reading 
Sharples Pita: Wills Bill — First Reading 
[Volume:634;Page:5565] 
Dr PITA SHARPLES (Co-Leader—Maori Party) 
: 
 One of the most memorable moments in the last few months was the formal raising-up ceremony for Te Arikinui Tuheitia Paki the Maori King. Cloaked in the kiwi-feathered korowai of the second Maori King Tawhiao the new king was tapped on his head with a Bible by a descendant of Wiremu Tamihana the first kingmaker. It was the same Bible that had been used to crown the six previous Maori monarchs since the first coronation in 1858. Moments before his ascension senior Tainui kaumatua Tui Adams turned to the people and asked whether Tuheitia should be king. “He kingi?” he asked. “Ae.” they replied. “He kingi?” “Ae.” they repeated. “He kingi?” “Ae.” and so it was to be. 
With that the will of the people the declaration confirming the transfer of political leadership was complete. It was a formalised and highly public ritual which enabled effect to be given to the intention of the will-maker the late Queen Te Atairangikaahu in a language that was plain and that simplified the process. It provides an excellent precedent in which to understand the reform of the Wills Act 1837. 
According to the Law Commission’s 1997 report the two key principles governing the law of wills are that a will-maker’s intentions should be upheld and also that great care should be taken in determining whether what is claimed to be an expression of the will-maker’s wishes is genuinely so. The process of the performed will or ohaki as I have outlined above is clearly relevant in understanding how tangata whenua—Maori—view the execution of wills. Whilst the Wills Act 1837 from the United Kingdom remains the foundation of New Zealand’s law of wills for Maori the ohaki or the dying declaration of the will-maker has established a robust model that could assist New Zealand lawmaking. 
 It is a tradition that has been carefully passed down through generations. For example in the days leading up to his death in 1894 Tawhiao the second Maori King announced his successor with these words: “Papa te whatitiri ka puta Uenuku ka puta Matariki ko Mahuta te Kingi—the thunder crashes Uenuku the rainbow god appears the constellation of Matariki heralding the start of a new year is present and in its midst we welcome Mahuta the new king.” Tawhiao’s dying declaration performed the function of a written will. His intentions are manifest in a public performance of which there are sufficient witnesses to both confirm the event as well as gain tribal support. The action was easily understood the dying king’s intentions were transparent and the record shows it to be highly successful despite the absence of lawyers or the Public Trust Office. 
In his 1960 text  
Maori Land Law 
 Smith explains that the strong Maori tradition of ohaki would be acted on without question by the relatives after death. In 1895 the Maori Appellate Court recognised the custom of ohaki in respect of Maori customary land but the Native Land Laws Amendment Act of that same year 1895 was passed to abrogate by statue what had been passed in law. 
I have taken the time to share our customs of ohaki with this House because in many ways I think tangata whenua had a model to authorise the genuine expression of will-makers’ testamentary intentions which could well have been useful in this Wills Bill. The customary practice of ohaki of providing for a bequest escaped the rigidity of turgid legalese of existing laws of wills derived from the 1837 Imperial Act. It was acknowledged and recognised by the people as having great meaning in informing Maori decisions about succession to ancestral property. It was a custom that has been carried out over the generations and over centuries and still holds value. 
Indeed in 1913 Frank Acheson judge of the Whanganui—and later the Tai Tokerau divisions of the Native Land Court—analysed in detail Maori land law including that relating to wills. His work has been described as being marked by “a detailed knowledge of Native Land Court practice and by a sophisticated understanding of jurisprudence and international law.” And importantly for modern-day Parliament almost a century later the process of ohaki still has currency amongst tangata whenua. Members of the House may recall the acknowledgment given to Sir Graham Latimer by the late Dame Whina Cooper not long before her death in 1995. In her last days she recognised Sir Graham as the person to whom she bequeathed the responsibility to continue the work that she had begun. Sir Graham took this ohaki and honoured it in a way that was befitting of the person from whom he received this bequest. 
The Maori Party believes the existence of the formalised and mostly oral tradition of ohaki has great interest alongside the bill currently before the House to make the law clearer and more accessible. It makes one wonder at the wisdom of the law-making process that a perfectly appropriate procedure for bequeaths is accepted into law yet rejected a few months later and to this day it still has meaning and relevance for a significant group within our population. 
I contrast our customary processes of ohaki with that of the New Zealand Defence Force and the provision for informal will-making that presently exists in the armed forces. The Wills Bill restates the existing law that allows soldiers and sailors to make informal wills in plain language. There are currently provisions for what is described as a “privileged person” within the armed forces seafarers at sea and prisoners of war for informal will-making. In the circumstances of dangerous active service these persons of privilege are able to make amend and revoke a will urgently without satisfying the usual formalities. The question the Maori Party inevitably asks is how tangata whenua achieve the status of a privileged person in order to have our processes recognised as those personnel are. 
Finally I refer to the disposal of Maori land under a will. Te Ture Whenua Maori Act 1993 provides a further and quite broad exception to the principle that testators should be free to dispose of their interests as they see fit. Succession to Maori land is dealt with under section 108 of that Act. Maori land interests or Maori incorporation shares can only be left to children or descendants brothers and sisters anyone else entitled to receive interests by whakapapa or related to the testator by blood who is a member of the hapu associated with the land other owners of the land who are members of the hapu associated with the land whangai—adopted—of the testators or trustees of the above. If Maori land is willed to someone who does not qualify that part of the will is invalid. The court will then determine who should succeed to the land on the basis of law. 
I conclude with one case that puts these principles into practice. The case of Tukua and Maketu C2 B Block heard in the Maori Land Court and Maori Appellate Court in March 2000 tells the case of a declaration from George Tukua in a will made in 1993 to leave Maketu C2 B block to his whangai adopted son from a de facto relationship Te Kahuhui in “recognition of his love and support for me.” There was no question that the will was subject to Te Ture Whenua Maori Act. Section 108 of that Act limits the persons to whom Maori freehold land may be left by will. The court was not satisfied that Te Kahuhui possessed a blood or whakapapa relationship with the deceased. It did however consider his eligibility to the bequest as a whangai which section 3 defines as a person adopted in accordance with tikanga Maori. The court concluded that although custom generally favours a kin-based whangai relationship in this specific case the relationship was compounded by another customary practice—the practice of ohaki or bequest. Furthermore there was evidence of a long and close relationship between the deceased and Te Kahuhui which was the key factor in this case. The court upheld the bequest. 
The issues associated with land with succession with bequests and with death are of huge importance to our whanau. The Maori Party will support the bill to select committee as we support the progress it has made in eliminating the anomalies and anachronisms of the existing laws on wills. We are also pleased that in expressing the law in language that is more contemporary and plain the legislation should inevitably assist whanau hapu and iwi in gaining access to due justice. However we hope that during the select committee consideration the important issues of whakapapa right to succession ohaki the status of whangai and informal will-making are given due consideration.