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Review of Succession Law: Rights to a Person's Property on Death

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Review of Succession Law: Rights to a Person's Property on Death April 2021 jesseApter aM, Te Whanganui-a-Tara, Aotearoa Wellington, New Zealand Issues Paper | He Puka Kaupapa 46 Review of Succession Law: Rights to a person’s property on death He arotake i te āheinga ki ngā rawa a te tangata ka mate ana Te Aka Matua o te Ture | Law Commission is an independent, publicly funded, central advisory body established by statute to undertake the systematic review, reform and development of the law of Aotearoa New Zealand. Its purpose is to help achieve law that is just, principled and accessible and that reflects the values and aspirations of the people of Aotearoa New Zealand. Te Aka Matua in the Commission’s Māori name refers to the parent vine that Tāwhaki used to climb up to the heavens. At the foot of the ascent he and his brother, Karihi, find their grandmother, Whaitiri, who guards the vines that form the pathway into the sky. Karihi tries to climb the vines first, but makes the error of climbing up the aka taepa, or hanging vine. He is blown violently around by the winds of heaven, and falls to his death. Following Whaitiri’s advice Tāwhaki climbs the aka matua, or parent vine and reaches the heavens and receives the three baskets of knowledge. Kia whanake ngā ture o Aotearoa mā te arotake motuhake Better law for Aotearoa New Zealand through independent review The Commissioners are: Amokura Kawharu – Tumu Whakarae | President Helen McQueen – Tumu Whakarae Tuarua | Deputy President Donna Buckingham – Kaikōmihana | Commissioner Te Aka Matua o te Ture | Law Commission is located at: Level 9, Solnet House, 70 The Terrace, Wellington 6011 Postal address: PO Box 2590, Wellington 6140, Aotearoa New Zealand Document Exchange Number: SP 23534 Telephone: 04 473 3453 Email: [email protected] Internet: www.lawcom.govt.nz The Māori language version of this Issues Paper’s title was developed for Te Aka Matua o te Ture | Law Commission by Kiwa Hammond and Maakere Edwards, of Aatea Solutions Limited. The title was finalised in conjunction with the Commission’s Māori Liaison Committee. Kei te pātengi raraunga o Te Puna Mātauranga o Aotearoa te whakarārangi o tēnei pukapuka. A catalogue record for this title is available from the National Library of New Zealand. ISBN 978-0-9951291-0-8 (Online) ISSN 1177-7877 (Online) This title may be cited as NZLC IP46. This title is available on the internet at the website of Te Aka Matua o te Ture | Law Commission: www.lawcom.govt.nz Copyright © 2021 Te Aka Matua o te Ture | Law Commission. This work is licensed under the Creative Commons Attribution 4.0 International licence. In essence, you are free to copy, distribute and adapt the work, as long as you attribute the work to Te Aka Matua o te Ture | Law Commission and abide by other licence terms. To view a copy of this licence, visit https://creativecommons.org/licenses/by/4.0 iii FOREWORD TE AKA MATUA O TE TURE | LAW COMMISSION Foreword For most of us, the way we want our property to be distributed when we die is important. Succession of property can express aroha, love and affection, recognise who we consider to be family, support those who we think need to be provided for, and provide benefits for the public good. An ao Māori perspective emphasises the importance of whānau and whanaungatanga. It is underpinned by whakapapa connections to whenua, whānau, tūpuna and atua. It is concerned with upholding the mana of both the deceased and the collective. Te Aka Matua o te Ture | Law Commission is reviewing aspects of the law governing succession. The review focuses on claims against estates and the distribution of intestate estates. It calls us to engage with the tikanga and values that should underpin good succession law. We have benefited in this review from the Commission’s work on succession law undertaken in the 1990s. Its recommendations from that review were partially implemented, including through the enactment of the Wills Act 2007. However, statutes like the Family Protection Act 1955, the Law Reform (Testamentary Promises) Act 1949 and the Administration Act 1969 have continued without reform. Consequently, the law in this area is founded on the attitudes and values from generations ago. This Issues Paper asks afresh what Aotearoa New Zealand’s succession law should be. The review engages the guarantee of tino rangatiratanga and the Crown’s kāwanatanga responsibilities under te Tiriti o Waitangi | the Treaty of Waitangi. The review raises too the centrality of tikanga as a source of law. This Issues Paper considers crucial questions about the facilitation of tino rangatiratanga and the contribution of tikanga to the development of law in relation to succession. We encourage all New Zealanders to have their say. The feedback from the submissions we receive on this Issues Paper will influence the final recommendations we will make later this year in our final report. Amokura Kawharu Tumu Whakarae | President iv HAVE YOUR SAY TE AKA MATUA O TE TURE | LAW COMMISSION Have your say We want to know what you think about the issues and proposals set out in this paper. Do you agree or disagree with the way the issues have been articulated? Are there additional issues you think should be considered? What do you think about the proposals for reform? Submissions on our Issues Paper should be received by 10 June 2021. You can email your submission to [email protected]. You can post your submission to Review of Succession Law Law Commission PO Box 2590 Wellington 6140 WHAT HAPPENS TO YOUR SUBMISSION? Te Aka Matua o te Ture | Law Commission will use your submission to inform our review and we may refer to your submission in our publications. We will also keep all submissions as part of our official records. Information supplied to the Commission is subject to the Official Information Act 1982. We will publish the submissions we receive on our website once we have published our final report. Your submission and your name will be publicly available. We will remove your contact details from your submission before publishing it on the website. If you do not want us to release identifying information or any other part of your submission, or do not want your submission to be referred to in our publications, please explain in your submission which parts should be withheld and the reasons. We will take your views into account in deciding: • whether to withhold or release any information requested under the Official Information Act • if and how to make your submission publicly available on our website; and • if and how to refer to your submission in our publications. Te Aka Matua o te Ture | Law Commission complies with the Privacy Act 2020, which governs how it collects, holds, uses and discloses personal information you provide. You have the right to access and correct your personal information. v ACKNOWLEDGEMENTS TE AKA MATUA O TE TURE | LAW COMMISSION Acknowledgements Te Aka Matua o te Ture | Law Commission gratefully acknowledges the contributions of the people and organisations that have shaped our Issues Paper. We acknowledge the generous contribution and expertise from our Expert Advisory Group: • Bill Patterson, Patterson Hopkins • Greg Kelly, Greg Kelly Law • Mānia Hope, Barrister • Professor Nicola Peart, University of Otago • Theresa Donnelly, Perpetual Guardian We are also grateful for the support and guidance of the Māori Liaison Committee to Te Aka Matua o te Ture | Law Commission. We have been further assisted by many individuals and organisations who kindly shared their expertise and experiences with us in the preliminary engagement stage of this review. We thank all the practitioners who responded to our Practitioner Survey. We acknowledge the input we received from Auckland Disability Law, Commission for Financial Capability, Manaakitia a Tātou Tamariki | Office of the Children’s Commissioner, members of the judiciary, Ngā Pou Whakawhirinaki o Aotearoa | Citizens Advice Bureau, Professors Christine Stephens and Fiona Alpass of Te Kunenga Ki Pūrehuroa | Massey University, Public Trust, Tāhū o te Ture | Ministry of Justice, Tatauranga Aotearoa | Stats NZ, Te Manatū Whakahiato Ora | Ministry of Social Development, Te Tari Taake | Inland Revenue, and Toitū te whenua | Land Information New Zealand. We are grateful for the contributions of Dr Maria Hook and Jack Wass to the discussion of cross-border issues in this Issues Paper. We acknowledge individuals who have engaged with us to share an ao Māori perspective on succession. We have received valuable assistance from Te Amokura Consultants Limited. We are grateful to those tikanga and legal experts who attended and contributed to the wānanga on the tikanga relevant to succession. We acknowledge the insights provided by Te Puni Kōkiri, Te Tumu Paeroa | Māori Trustee, Te Puni Kōkiri, Te Kooti Whenua Māori | the Māori Land Court, and Te Rōpū Whakamana i te Tiriti o Waitangi | the Waitangi Tribunal. Finally, we thank those individuals and groups who have shared their views and experiences with us. We emphasise nevertheless that the views expressed in this Issues Paper are those of Te Aka Matua o te Ture | Law Commission and not necessarily those of the people who have helped us. We acknowledge with thanks the work of Te Tari Tohutohu Pāremata | Parliamentary Counsel Office in preparing draft legislative provisions for inclusion in this Issues Paper. Nō reira, ko tēnei mātou e mihi nei ki a koutou, kua whai wā ki te āwhina i a mātou. Tēnā koutou, tēnā koutou, tēnā koutou katoa. The Commissioner responsible for this project is Helen McQueen. The legal and policy advisers who have worked on this Issues Paper are John-Luke Day, Tāneora Fraser and Susan Paul.
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