IN THE MĀORI LAND COURT OF NEW ZEALAND TAITOKERAU DISTRICT 60 Taitokerau MB 46 (60 TTK 46) A CYNTHIA ANN RAEWYN TAHUPARAE Applicant

Transcription

1 60 Taitokerau MB 46 IN THE MĀORI LAND COURT OF NEW ZEALAND TAITOKERAU DISTRICT 60 Taitokerau MB 46 (60 TTK 46) A UNDER IN THE MATTER OF BETWEEN Sections 113 and 118, Te Ture Whenua Māori Act 1993 Marino Henare Pumipi Rangitihi Tahuparae CYNTHIA ANN RAEWYN TAHUPARAE Applicant Hearing: 22 November July November May 2013 (Heard at Whanganui and Auckland) Judgment: 05 June 2013 RESERVED JUDGMENT OF JUDGE D J AMBLER

2 60 Taitokerau MB 47 Introduction [1] Marino Tahuparae died intestate in Queensland, Australia on 28 May 2010, aged 72. He had nine adult children who survived him eight with his first wife, Kyra Bell, and a son from another relationship. Marino has substantial Māori land interests in the Aotea district and there is apparently money held on his behalf in relation to some of those interests. [2] On 27 February 2009 Marino married Cynthia Thompson (now known as Cynthia Tahuparae) in Australia. Within two months of the marriage they separated (sometime in April 2009) and remained separated until Marino s death in May Although there is a dispute between Cynthia and Marino s children over the extent to which she and Marino remained in contact during the period of separation, Cynthia accepts that they had in fact separated. Notwithstanding the separation, Cynthia has applied to succeed to Marino s Māori land interests. The application is vehemently opposed by Marino s children. [3] Marino s children point out that the marriage effectively lasted two months, and make a range of allegations about Cynthia s relationship with their father and her motivations for the application. In short, they say that Cynthia duped their father and characterise the application as opportunistic. They also suggested that Cynthia had entered into a de facto relationship with another man after their father s death but offered no cogent evidence to support the claim. [4] Cynthia denies these claims, counters with her own allegations about the children s relationship with and treatment of their father, and says that she is merely seeking her legal entitlement. [5] The details of the various allegations are not directly relevant to my decision and may well be the subject of separate proceedings. I mention them simply to give a sense of the level of acrimony between the parties. [6] There are two issues for me to address in this decision. First, whether Cynthia is entitled to a life interest in respect of Marino s Māori land interests when they had separated 13 months before his death. Second, whether the Court should refrain from making vesting orders and require formal administration of the estate.

3 60 Taitokerau MB 48 Cynthia s entitlement [7] Marino s children assumed throughout the proceedings in this Court that Cynthia was no longer entitled to a life interest in Marino s land interests because they had separated. The children had been emboldened in their view by judicial comments to this effect at the first hearing. But this view is mistaken. [8] Under s 109(2) of Te Ture Whenua Māori Act 1993 ( the Act ), Cynthia is entitled to a life interest. Under s 109(4), a separated spouse only loses the right to a life interest if there is a separation order, or a separation agreement made by deed or other writing. Separation per se is not enough. Section 109(2) and (4) is set out below: (2) Where the owner of a beneficial interest in any Maori freehold land dies intestate leaving a person who is the owner's surviving spouse or civil union partner, that person is, subject to subsection (4), entitled as of right to an interest in that interest for life, or until he or she remarries or enters into a civil union or a de facto relationship. (4) A surviving spouse [or civil union partner] shall not be entitled under subsection (2) of this section if, at the date of the death of the owner, a separation order, or a separation agreement made by deed or other writing, is in force in respect of the marriage [or civil union] between the surviving spouse [or civil union partner] and the owner. [9] Although Marino and Cynthia had separated, there was no separation order in place I was told there is no such order in the Queensland jurisdiction and nor was the separation recorded by deed or in writing. Thus, s 109(4) is not triggered. [10] It comes as no surprise to me that the separation was not recorded in writing: Marino married Cynthia late in life, the marriage lasted two months, they had no children together and his only substantial assets consisted of Māori land interests. In my experience, Māori rarely record separations in writing, especially if there are no general land interests. I also understand that separation orders in the Family Court are infrequently sought or granted. [11] In my respectful view, s 109(4) as currently drafted does not reflect the practical realities of separation amongst Māori and nor does it set an appropriate threshold for separation to trigger the loss of entitlement to the spousal life interest. Furthermore, the provision tends to promote applications under the Family Protection Act 1955 being the

4 60 Taitokerau MB 49 primary method by which to challenge a spousal life interest which necessitates proceedings in another forum. The fact that such proceedings cannot be brought in this Court is an added hurdle for the parties. Section 109(4) and this Court s lack of jurisdiction to hear claims under the Family Protection Act 1955 in respect of Māori land need to be considered by the law reformers. [12] Nevertheless, I must leave matters of law reform for others to pursue. I am required to act in accordance with s 109 as it presently stands. Accordingly, under s 109(2) Cynthia is prima facie entitled to a life interest irrespective of the separation and the short duration of the marriage. Vesting orders [13] Notwithstanding Cynthia s entitlement to a life interest, the issue that remains is whether it is appropriate to make vesting orders. [14] The application is under ss 113 and 118. Section 118 enables the Court to vest land interests in the persons beneficially entitled where there is no grant of administration but, importantly, s 118(3) provides: (3) No order shall be made under this section unless the Court is satisfied (a) (b) That the person or persons entitled to obtain a grant of administration of the estate of the deceased person does not or do not intend to seek any such grant; and That there is no apparent reason why the estate of the deceased person should be formally administered. [15] Section 118(3) gives rise to a negative statutory presumption, that is, no order under s 118 shall be made unless the Court is satisfied of the two matters set out in subsections (a) and (b). Those two prerequisites are conjunctive the Court must be satisfied of both matters before it can make a vesting order. It also follows that the applicant has the evidential burden to satisfy the Court of those two matters. [16] I now address the prerequisites in s 118(3)(a) and (b) of the Act.

5 60 Taitokerau MB 50 Do the persons entitled to a grant of administration not intend to seek any such grant? [17] Under the Administration Act 1969, Cynthia and Marino s children are entitled to apply to the High Court for a grant of letters of administration. [18] When filing the application for succession, Cynthia wrote the words don t know on the application form in relation to question 11. Question 11 asked whether or not there was a will and, importantly, whether the persons entitled to a grant of administration were intending to seek such a grant. At the hearings, Cynthia did not address whether anyone intended applying for formal administration. To be fair, the hearings were taken up with the dispute over Cynthia s relationship with Marino. Nevertheless, Cynthia is the applicant and has the burden of satisfying me on this point. She has not done so. [19] Is there nevertheless evidence that Marino s children do not intend applying for formal administration of the estate? The issue of formal administration of the estate only arose at the very end of the final hearing, after I had indicated that Cynthia was prima facie entitled to a life interest. Corinda Rangitihi, one of Marino s daughters, asked whether there was any way the costs of the unveiling of their father s headstone (and those of his two children and his father) could be met out of the funds held for their father. (I also glean from the evidence that Marino s children met some of the costs of his tangihanga as they brought his body back to New Zealand for that purpose.) Corinda estimated that there was approximately $4, held for their father. I explained to her that an administrator needed to be appointed for any such costs to be met. She had obviously not appreciated that this might be necessary or even an option. [20] It is clear to me that Marino s children had not considered appointing an administrator to deal with the tangihanga and headstone costs as they assumed all along that Cynthia would not get a life interest, and that they would then be able to deal with the land interests and estate costs in their own right. But the fact that they had not considered this option is not the same as having decided not to do so which is what I must be satisfied of under s 118(3)(a). [21] Accordingly, I cannot be satisfied from the evidence that Marino s children do not intend applying for a grant of administration of his estate for the purposes of s 118(3)(a).

6 60 Taitokerau MB 51 And, as I go on to point out, there are in fact very good reasons for them to make such an application. Is there no apparent reason why Marino s estate should be formally administered? [22] There are two reasons why Marino s estate should be formally administered. [23] First, it would be appropriate for an administrator to be appointed to recover any funds due to Marino and to then meet the costs of the tangihanga and unveiling that properly fall within the estate. In other words, it would not be appropriate to make vesting orders until the estate s costs are tidied up. [24] I note that it is possible for the Court to make orders under s 242(2) for the payment of any tangi expenses and costs of headstones, which can avoid the need for formal administration of an estate. Section 242 provides: 242 Orders for payment of money held in trust (1) The Court, on the application of any person interested or of its own motion, may order that any money held in trust for any Maori, or any money derived from any Maori land and held in trust, by any trustee, Government department, officer of the Public Service, corporation, solicitor, or accountant be paid to the person or persons beneficially entitled to the money, or to any other person, as the Court may direct, on behalf of the person or persons so entitled. (2) Notwithstanding anything in subsection (1) of this section, in respect of any money to which that subsection applies, the Court may direct that it be applied wholly or partly in or towards any of the following purposes: (a) (b) (c) The maintenance, education, or advancement of any person beneficially entitled to the money: The payment of rates or charges in respect of any land: The payment of any legal costs, survey costs, funeral expenses, tangi expenses, costs of headstones, or other disbursements, or the reimbursement of any person who has already paid any such costs, expenses, or disbursements. (3) The Court may exercise any powers conferred on it by this section in respect of any money to which subsection (1) of this section will apply when it is received by any person or body specified in that subsection; but no such order shall have effect until that money is so received.

7 60 Taitokerau MB 52 [25] However, a s 242 order is not an appropriate substitute for formal administration in the present case as there are too many uncertainties concerning the estate. First, I have no specific details of the monies held or the particular land blocks in respect of which an order could be made Corinda merely mentioned the money in passing without providing any details. Second, there is no evidence that any such money is held on trust or that it is held by a trustee, Government department, officer of the Public Service, corporation, solicitor, or accountant, as is required in order to make an order under s 242. Third, the estate s costs may well exceed the funds currently held, in which case it would be preferable for an administrator over time to recover sufficient funds and meet the costs. [26] The second reason for requiring formal administration concerns Marino s children s claims in respect of Cynthia s life interest. Marino s children have challenged Cynthia s entitlement to a life interest since the outset of these proceedings. But, as I have concluded, Cynthia is prima facie entitled to that interest under s 109(2) and the only way Marino s children can challenge Cynthia s entitlement is to bring a claim against the estate under the Family Protection Act I express no view on the merits of such a claim. But in order for a claim to be made, an administrator must first be appointed. And any order under s 113 determining entitlement to Marino s interests must await the outcome of any such proceedings hence why I have expressed Cynthia s entitlement to be prima facie. [27] I acknowledge that Marino s children have not expressly said that they intend bringing a Family Protection Act claim. But that is hardly surprising when they assumed throughout that Cynthia could not succeed under s 109, when the Court initially endorsed that view, and when they have not had the benefit of legal representation to advise them on the steps they need to take in order to challenge Cynthia s life interest. [28] Ultimately, the test posed in s 118(3)(b) is not based on whether a party intends to bring a claim against an estate. Rather, it simply asks whether there is no apparent reason why the estate should be formally administered. I have concluded that there are two very good reasons why the estate should be formally administered before vesting orders are made. It would simply be premature to make vesting orders when those two matter need to be addressed.

8 60 Taitokerau MB 53 [29] Furthermore, this approach is, in my assessment, consistent with the Preamble and ss 2 and 17 of the Act in that it will offer the opportunity for what is in essence a dispute over retention of land through whakapapa to be addressed by either of the courts with the necessary jurisdiction, the Family Court or High Court. Outcome [30] What then should be the outcome for the application? The options are to adjourn the application pending the appointment of administrators or to simply dismiss the application and leave the parties to bring a fresh application once administrators have been appointed. I consider the latter approach is preferable. [31] Marino s children and Cynthia clearly need to consider their respective rights before applying to appoint an administrator. Some of Marino s children live in Australia, which will complicate and delay any application. Unless Marino s children and Cynthia agree on who should be appointed as administrator which appears highly unlikely any application to the High Court will likely be opposed. The High Court will in turn need to consider whether the acrimony between the parties and the prospective claim mean that an independent administrator should be appointed. There are, as yet, no details of the money held on behalf of Marino, and so enquiries need to be made in that respect. If and when an administrator is appointed, proceedings under the Family Protection Act 1955 will likely be filed. Any such proceedings will be factually complex given the intestacy, the short duration of the marriage, claims over what Marino intended for his estate and the various allegations over the conduct of the parties. [32] All of these factors tell me that there is likely to be considerable delay before the estate can be concluded, in which case adjourning the application is not appropriate. [33] But there is a more fundamental reason why an adjournment is not appropriate. Cynthia has failed to satisfy me that vesting orders should be made in terms of s 118(3). The orthodox approach is that if an applicant does not establish the grounds for the Court to make orders then an application should be dismissed. That is, in effect, the ratio of

9 60 Taitokerau MB 54 Heath J s decision in Ratahi v Māori Land Court. 1 approach. I see no reason to depart from that [34] The application is dismissed. Pronounced at am in Whangarei on Wednesday this 5 th day of June D J Ambler JUDGE 1 Ratahi v Māori Land Court HC New Plymouth CIV , 12 May 2008.