IN THE MĀORI LAND COURT OF NEW ZEALAND TE WAIPOUNAMU DISTRICT A Section 117, of Te Ture Whenua Māori Act JUDITH ANNE BURNS Applicant

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1 41 Te Waipounamu MB 21 IN THE MĀORI LAND COURT OF NEW ZEALAND TE WAIPOUNAMU DISTRICT A UNDER IN THE MATTER OF Section 117, of Te Ture Whenua Māori Act 1993 Maurice Hikana Nutira also known as Maurice Te Morehu - Succession BETWEEN JUDITH ANNE BURNS Applicant Hearing: 38 Te Waipounamu MB dated 8 July 2016 (Heard at Christchurch) Judgment: 7 November 2016 RESERVED JUDGMENT OF JUDGE M J DOOGAN

2 41 Te Waipounamu MB 22 Introduction [1] Maurice Nutira died on the 27 March 2013 leaving a will dated 11 March Probate was granted on 28 May 2013 in favour of Judith Burns and Kaye Nutira as administrators. [2] This application concerns a block of General land, section 17 Block IV Rowallan (the Rowallan block), and certain Tītī Island interests. There is no issue as to the Tītī Island interest but succession to the Rowallan block is contentious. The issue to decide is what to do in respect of that land. Background [3] Mr Nutria s will provided: Māori Land 5. I give all my rights and interest and all Māori land owned by me at my death to THE PATIKI WHĀNAU TRUST 6. I give all my rights, titles and interests in the Titi Islands owned by me at my death to my son MAURICE REWI NUTIRA. [4] As it is not possible to devise Tītī Island interest by will, cl 6 of Mr Nutira s will fails and a partial intestacy arises. It is common ground that those interests should be succeeded to by all of Mr Nutira s children in equal shares. [5] Before he died Mr Nutira had transferred all his Māori land interest to The Patiki Whānau Trust. 1 The administrators now apply to have the Rowallan block vested in the whānau trust. They maintain that this was Mr Nutira s intention. Mr Nutira s children originally filed consents to the transfer of the Rowallan block to the whānau trust but these were subsequently withdrawn and Mr Nutira s children are now divided over what should happen to this land Te Waipounamu MB 9-11 (14 TWP 9-11).

3 41 Te Waipounamu MB 23 [6] Because the Rowallan block is General land it does not come within the terms of cl 5 of Mr Nutira s will. The residue clause would apply which would mean it would be succeeded to by the five children in equal shares. [7] Mr Nutira s daughters Angeline Leitch, Sharon Russell and Raeleen Nutira maintain that their father intended to gift the Rowallan block directly to his children. [8] Judith Burns and Mr Nutira s son Maurice Nutira and daughter Rowena Fullham, together with Rowena s daughter Sarah (The Patiki Whānau Trust secretary), say that Mr Nutira always intended the Rowallan land to go to the whānau trust and had taken steps in his lifetime to achieve this. This had been the common understanding of all of the whānau, as evidenced by correspondence submitted at the time consents were filed in January The only reason the land had not been transferred to the whānau trust in Mr Nutira s lifetime was because a forestry easement had delayed dealings with the land. The problem now is that the will does not distinguish Māori land and General land owned by Māori. [9] This gives rises to two issues: (a) Does the Māori land Court have jurisdiction to determine a dispute over the interpretation of a will in relation to General land? (b) If the Māori land Court does have jurisdiction to determine the matter, can it give effect to the will-maker s alleged intentions when these are not reflected in the terms of the will? [10] In Hodgson - Ropata Wharetoetoe Rare deceased, 2 the Māori Appellate Court affirmed that the Māori Land Court has concurrent jurisdiction with the High Court to determine competing claims in an estate regarding legal entitlement to succeed to an interest in Māori freehold land. 3 This is apparent from the interplay between ss 102, 103 and 113 of Te Ture Whenua Māori Act 1993 (the Act). 2 Hodgson Ropata Wharetoetoe Rare deceased (2004) 34 Gisborne Appellate MB 120 (34 APGS 120). 3 At 124.

4 41 Te Waipounamu MB 24 [11] However, Hodgson was not concerned with this Court s jurisdiction in relation to General land, for which the relevant provision in the Act is s 111. Subsection 1 states that: On application by the administrator of any Maori who has died possessed of any freehold land interest in General land, the Court may make an order vesting that interest in the administrator or in the person entitled to succeed to the interest under the will or on the intestacy of the deceased. [12] The provision does not address whether the Court is able to determine competing claims to General land, implying that the power is not conferred by the Act. [13] I note that s 102(b) makes it clear that the High Court continues to have jurisdiction and authority to hear and determine proceedings in respect of testamentary and other matters in relation to estates to which Part 4 of Te Ture Whenua Māori Act applies. Part 4 applies to estates that comprise, in whole or in part, any beneficial interests in Māori freehold land. 4 As I read the combined effect of these provisions the clear implication is that whilst this Court can deal with the uncontested vesting of General land in an administrator or those entitled on intestacy, it does not have jurisdiction to determine disputes over entitlement. A dispute over entitlement becomes a matter for the High Court to determine. [14] The Wills Act 2007 confers on the High Court jurisdiction to correct a will if it is satisfied that it does not give effect to the will-maker s instructions. 5 It also gives the High Court jurisdiction, in certain circumstances, to use external evidence to interpret words used in the will that make the will ambiguous or uncertain in light of the surrounding circumstances. The will-maker s testamentary intentions do not constitute surrounding circumstances for the purpose of the Wills Act. 6 [15] In this case, all those who now maintain the residue clause of the will should apply had signed consents to the transfer of the Rowallan block to The Patiki Whānau Trust. When submitting the consent to the Court Sharon Russell stated: Te Ture Whenua Māori Act 1993, s 100(1), s102(b). Wills Act 2007, s 31. Wills Act 2007, s 32(4).

5 41 Te Waipounamu MB 25 Please find attached my signed consent form to the Maori Land Court. I am confused as to why I am required to sign this form as no land belonging to my father Maurice Hikana Nutira was ever owned by us, his children. As per my father s instructions in life and in death all his land was to succeed to the Patiki Whānau Trust, therefore not part of his estate left to his children. I had signed the form so the process does not get delayed any further but this consent is solely for the land mentioned section 17 Block IV Rowallan Survey District. [16] By dated 1 February 2016 Raeleen Nutira wrote to Judith Burns attaching a signed consent stating: As Sharon has stated in her letter attached to her signed form, I also question why it is necessary for us to sign these consent forms for shares that were never ours. Our father made his wishes known before his death that the Maori land was to go to his grandchildren; he formed the Patiki Whānau Trust before his death. The land was never ours and did not become of our entitlement. I had signed the form under duress because I do not want to be accused of delaying the process any longer than necessary but please be aware that this consent is solely for the land mentioned section 17 Block IV Rowallan. [17] I also have regard to the fact that on 31 March 2016 the administrator sought clarification from the Court as to what would happen to the Rowallan block following the withdrawal of consents to transfer it to The Patiki Whānau Trust. Judith Burns asked whether this Court had a process that would enable the administrators to contest the apparent fallback position which would be a division of the block amongst each of the five children in equal shares. The trustees advised that they wish to follow whatever legal means available to resolve the matter as Mr Nutira wished. [18] When the matter came before me on 8 July 2016, I expressed the preliminary view that as consents had been withdrawn the default position would be in accordance with the residue clause in the will (a division of the Rowallan block in equal shares amongst the five children). [19] On 5 July 2016, Judith Burns filed with the Court a letter and a number of attachments on behalf of the trustees. The letter set out in some detail her understanding of Mr Nutira s intentions, the sequence of events leading to the establishment of the whānau trust, and the reasons why the Rowallan block was not initially transferred along with the other lands.

6 41 Te Waipounamu MB 26 [20] After hearing from various whānau members and Mrs Burns on 8 July 2016, I adjourned the matter to Chambers to allow Sarah Fullam the secretary of the Patiki whānau trust to file minutes of the whānau trust s meetings where the Rowallan block was discussed. [21] Further information was filed with the Court by Sarah Fullam on 13 July The Court also received a letter dated 2 August 2016 from Angeline Leitch and a letter and enclosures dated 5 August 2016 from Sharon Russell and Raeleen Nutira (daughters of Mr Nutira). [22] Having regard to all these matters I am satisfied that there is a genuine contest over the interpretation of the will in relation to the Rowallan block. Unfortunately, it is also an issue over which which this Court lacks jurisdiction. The appropriate course in my view is to transfer the matter to the High Court for determination. Decision [23] There is an order pursuant to s 18(2) of Te Ture Whenua Māori Act 1993, transferring to the High Court at Christchurch the dispute over interpretation of the will of Maurice Hikana Nutira in relation to the land known as section 17 Block IV Rowallan. [24] The Registrar is to arrange the transfer of the file including all relevant Court minutes and evidence received. [25] There is an order pursuant to s 6 of the Māori Purposes Act 1983 vesting the deceased s Tītiī Island interests in Raeleen Anne Nutira, Sharon Marise Russell, Maurice Rewi Nutira, Angeline Pearl Leitch and Rowena May Fullham equally. Pronounced at 3.55 pm in Wellington on Monday this 7 th day of November 2016 M J Doogan JUDGE