Sharples Pita: Wills Bill — Second Reading 
Sharples Pita: Wills Bill — Second Reading 
[Volume:639;Page:9003] 
Dr PITA SHARPLES (Co-Leader—Maori Party) 
: 
 Kia ora Mr Deputy Speaker. I was interested to hear the view of a lawyer working with Maori within my electorate TamakiMakaurau just last Friday. Andrew Lawson who has worked at the Mangere Community Law Centre for the past 10 years was reflecting on the experiences and perspectives of Maori regarding wills. It should perhaps be pointed out that the Mangere Community Law Centre has recently celebrated 20 years of service being one of the first law centres in Aotearoa to provide services to address the unmet legal needs of its community. It is a community law centre that is well supported by mana whenua by Tainui. So when Andrew Lawson described the view of Maori as dismissing the need for wills because they think they are tempting fate it made me sit up and listen. This is an organisation that knows what it is talking about. Mr Lawson went further and explained that although many Maori view writing a will as bad luck the misfortune actually occurs following the death in the whanau if deliberations about the inheritance of assets such as taonga and shares in Maori land assets are up for debate. 
So with the words from my electorate ringing in my ears I have taken a particular interest in this the second reading of the Wills Bill. Its purpose is all about modernisation and simplicity. It replaces the Wills Act 1837 of the UK Parliament with an Act in plain language that updates certain aspects of existing wills law and brings all matters relating to wills together in a single statute. It is to be written in straightforward modern language that is clear and accessible to all those who wish to make update or revoke their will. 
The need for a revamp of current legislation governing wills was recommended in the Law Commission’s 1997 publication  
Succession Law: A Succession (Wills) Act. 
 As we understand it the interest was a practical one because the legislation dating back to 1837 was archaic. So too were the words and the provisions. Thinking further about the suggestion that Maori are not interested in writing wills in the first place I wonder then whether the process of simplifying and clarifying the legislation may also have an educative function about the value of setting out directions in legal form for the distribution of one’s property after death. Some of the key areas one would think should be included are the answers to questions such as: can I leave my whangai some of my Maori land interest; how appropriate is it to defer property disposal provisions to the Maori Land Court to determine matters of succession; how are Acts such as the Family Protection Act 1955 the Matrimonial Property Act 1976 and the Administration Act 1969 able to comply with Maori cultural processes and laws; how are the succession rights of individuals whanau or hapu whose rights have been previously extinguished able to be considered; can I ensure my wishes will stand after I pass on and should I be able to make them stand; and is it time to consider a separate Maori law of succession? 
The Maori Party believes that the creation of a will can play a role in maintaining whakapapa links through the succession of resources and taonga to whanau and hapu. As such we are happy to support any amendments that assist this process. We are also of the opinion that the procedure of establishing wills is not one that applies just to contemporary times. Indeed Frank Acheson’s essay for the Jacob Joseph Scholarship of 1913 describes the process of ohaki—verbal wills—as a routine part of Maori custom. In 1914 a former student of the excellent Te Aute College Hoani Meihana Te RamaApakura was employed as a licensed interpreter and clerk of the Native Land Court. Through his work he would be called upon to witness wills and translate official documents from Maori to English. So clearly as tangata whenua we have had our own distinct process of establishing wills which may well be useful in any future wills education programme. 
The key issue for the Maori Party in looking at the creation of a bill in plain modern accessible language is ensuring that the reforms that take place are explained in such a way as to make it perfectly clear how the law works in relation to key elements of customary law. In 1996 the Law Commission requested that a working paper be written by Professor Pat Hohepa and Dr David Williams that could help to describe some of the intricacies of Maori law. The paper entitled  
The Taking into Account of Te Ao Maori in Relation to Reform of the Law of Succession 
 noted that there had been legal recognition of Maori customary law in the past in the case of marriage or adoptions but that such provisions were removed at the convenience of legislators who were not of Maori descent. 
A key example of the impacts of this relate to the case of whangai. Under Maori customary law whangai are similar to legally adopted children in accordance with tikanga Maori yet the Adoption Act 1955 does not apply to whangai. In a precedent established in November 2002 in  
Keelan 
 v Peach 
 the Court of Appeal upheld a High Court decision stating that whangai cannot make claims under the Family Protection Act. As a consequence of this case if Maori want to make it clear that a whangai child is to be included in a will he or she has to be named or referred to by the term “whangai” to be a beneficiary. 
But we have been pleased that with the passage of Te Ture Whenua Maori Act on 1 July 1993 there are now clear legal protections with regard to succession to Maori land. It used to be that a person could leave interests to whomever they wished or be imposed upon to do so—as often happened—but now an owner of Maori land interests can leave those interests only as set out in the Act. In summary Maori land interests or Maori incorporation shares can now be left only to children or descendants; brothers and sisters; anyone else entitled to receive interest by whakapapa anyone else related to the testator by blood who is a member of the hapu associated with the land; other owners in the land who are members of the hapu associated with the land; whangai of the testator; trustees of any of the above; and the spouse for life or for a shorter period. If Maori land is willed to someone who does not qualify that part of the will is invalid. The idea is to continue the collective nature of whakapapa and the maintenance of land within the whenua tipuna bloodlines. Freedom of choice should not extend to being able to alienate one’s children grandchildren and great grandchildren from their whenua. 
Finally one of the issues referred to in a paper by Professor Hohepa and Dr Williams was the absolute importance of discussing with tangata whenua the context and criteria encompassed in wills. Their discussion paper was always intended as a basis only for going forward to consult with iwi and pan-Maori organisations. Their recommendation was that the consultation process would be crucial in providing answers to questions on the future direction of the law of succession as it affected Maori. It would appear from such a recommendation that what the author suggested was a wide-scale hui process. The Maori Party is more than happy to offer suggestions for and support such a nationwide consultation. 
It may well be timely to revisit a concept I first raised in my first reading speech—that of ohaki a formal speech given when dying that takes the form of an announcement of one’s wishes regarding personal property disposal to the assembled relatives. With regard to ohaki I say that the legal oral declaration of intention was at first recognised as legally binding but powers were removed by legislation last century. The Maori Party believes it is an important succession concept and we would welcome further debate about its application in a modern-day context. We in the Maori Party support the Wills Bill at its second reading.