Place - Māori Land Court | Māori Land Court

Minute Book: 157 GIS 243

Place:

Present:

Date:

Gisborne

C. L. Wickliffe, Judge

K Lardelli, Clerk of the Court

25 March 2004

Application No: A20030003562 Personal File Ref:

Subject:

Section:

DECISION

Ropata Wharetoetoe Rare & Whangamata 4D1 C 1 B

43,113& 117/93

15007

This case concerns the will of Ropata (Robert) Rare. In his will, he attempted to leave sections of land from within the Whangamata 4D1C1B block to five of his daughters and one grandson. In fact Mr Rare only owns shares and he is not the sole owner of this block. There are ten other owners of Whangamata 4D1C1B.

Therefore, the issue for this Court to decide is whether it has jurisdiction to find that the provision of the will bequeathing these sections fails for want of certainty. If the Court does have jurisdiction, the next issue is whether it should make orders declaring entitlement to succeed in favour of those named in the will and vesting Mr Rare's Whangamata 4D1C1B shares in them.

Whangamata 4D1 C1 B

Whangamata 4D1 C1 B is a block of Maori freehold land in the Waikato-Maniapoto Maori Land Court District. It is situated within the Hauraki or Coromandel area and is in close proximity to the town of ' Whang801ataThis block comprises 4.7222 hectares and it is a long rectangular block that stretches from the otahu River to the hilltop overlooking the river and estuary.

Whangamata 4D1 C1 B was created by partition order dated 25 September 1963 at 78 HMB 214. The block was vested in five brothers holding equal shares, namely:

1. Edward Rare 0.2

2. Robert Rare 0.2

3. Rawiri Rare 0.2

4. Moana Rare 0.2

5. Joseph Rare 0.2

From that date, the brothers occupied the block. In 1972-1973, they reached an agreement based on a survey plan dividing the block into 5 sections of 2 acres, 0 roods and 35 perches.


Following a family meeting where they conducted a draw of lots, these sections were allocated among the five brothers. Each section then became the responsibility of each brother. They paid their own rates and generally maintained their own portion of the block. While the majority of the brothers are now deceased, their families have continued the occupation of Whangamata 401 C1 B in accordance with the 1972 family agreement.

Whangamata Papakainga Trust

On 12 November 1990 at 92 HMB 49, a trust was constituted over the block pursuant to section 438 of the Maori Affairs Act 1953. That trust is now an ahu whenua trust as expressly stated in section 354/93. The Trust over the land is known as the Whangamata Papakainga Trust. The objects of the Trust are:

"1 .. .. to provide for the use, management and alienation of the land to the best advantage of the beneficial owners or the better habitation or use by beneficial owners, to ensure retention of the land for the present Maori beneficial owners and their successors, to make provision for any special needs of the owners as a family group or groups, and to represent the beneficial owners on all matters relating to the use and enjoyment of the facilities associated therewith .

2. To recognise within the Trust the original five owners (being the Rare Brothers) agreement on the land allocation of the Whangamata 4D1C1 B as set out in 1972.

On the same day that the Trust was constituted, the Maori Land Court at 92 HMB 49, appointed the following people trustees:

1. Huapai Anne Edwards

2. Rakato John MacFarlane

3. Patricia Josephine Thompson

4. Hohepa Rare

5. Ropata Rare

Following a site visit to the block, I directed the Deputy Registrar on 1 October 2003 to produce a report providing a full summary of the minutes and decisions made by the Maori Land Court in 1963 when Whangamata 4D1C1 B was created and including all subsequent orders and minutes leading to the establishment of the current ahu whenua trust. (156 GIS 104-106)

I also directed the trustees to furnish to the Court an update report on the operation of the trust and the current status of all occupations of the block by the respective Rare brothers or their whanau . They were also to file an application under section 351193 for a statutory review of trust. The trustees have not complied with these


directions and none of them bothered to appear at the last Court hearing held on 27 November 2003. (See 156 GIS 265-266)

It seems that the Trust has never operated adequately for any sustained length of time. That was confirmed during hearings by the failure of the Trustees to report to the Maori Land Court as required by their Trust Order and section 238 of Te Ture Whenua Maori Act 1993. (See directions issued at 156 GIS 106)

Ownership of Whangamata 401 C1 8

There are now 11 owners in the block as some of the brothers are deceased and their children have succeeded . Before his death, Ropata Rare transferred some of the shares held by him in this block to his son Edward Barry Rare and his grandson David John Rare. They both received 0.1721 shares each. Consequently, the owners in the block are now:

1. David John Rare 0.01721 0.01721 0.1

2. Edward Barry Rare 3. Huapai Anne Edwards 4. Joseph Rare 0.2 5. Lavinia Dawn Appleton 0.07 6. Miriama Lynn Rare 0.1 7. Moana-Lee Suzanne Higgins 0.07

0.06 0.16558 0.1

8. Patricia Josephine Thompson 9. Robert Rare (now deceased) 10. Ruina Anne McFarlane 11. Ruth Te Aue Wikaire 0.1

Applications

On 11 October 2002, the Maori Land Court in Gisborne received an application under sections 113 and 117 of Te Ture Whenu Maori Act 1993 from Mrs Rebecca Walford and others. Attached to the application was a copy of the will of Mr Ropata Wharetoetoe Rare and a copy of the grant of probate dated 27 September 2002.

The will contains a provision which reads:

"From the block of land I own in Whangamata "known as 4D1 C1 B", I give to my daughter Leonie Hodgson all that piece of land between the Otahu Estuary and the Rare family private road that runs into Apperley Street and which includes my Batch, or Home, tool sheds, tractor shed and trees within my boundary, east and west and those growing within the board fence, along the family road, which will be the northern boundary of the section I give to Leonie.

My caravan, which is only suitable as a spare room I will also leave to Leonie. From the residue of my land in 401 C1 B, to these of my children I will give a Y. acre each. They are Rebecca Walford, Deanna Wanklyn, Shona Rare, Carol Wairehu, and also from the residue I am very proud to leave a Y. acre to my grandson Kelly Evernden.


Any residue after this may be used by the section owners for roading or reserve, or for both."

The matter was first heard by me on 2 December 2002, and I made orders under sections 113 and 117 in accordance with the will. I adjourned the matter to chambers for the final dimensions to be determined for the block Whangamata 4D1 C1 B. (See 153 GIS 231-234) At this point, the Registrar reported that the deceased, was not the sole owner, that he had no formal occupation order in his favour on the block, that there was an ahu whenua trust constituted over the block and that there are 11 owners in the block. In other words, the deceased could effectively only leave shares in the land and was not able to allocate the land in the manner outlined in the will.

Without any further information, it was arguable that the provision in the will dealing with Whangamata 4D1 C1 B failed and a partial intestacy resulted. At 154 GIS 155, I indicated that the deceased's children could seek an order under section 118(6)/93 for vesting the interests in them all in equal shares subject to consents being filed within six months.

Before the end of the six months, an application was received by the Maori Land Court pursuant to section 43/93. That application for a rehearing was filed by the solicitors of the beneficiaries under the will and it was received on 12 June 2003.

Maori Land Court Hearing

At the hearing held on 28 July 2003 at 155 GIS 255, the application for a rehearing was granted and previous orders were annulled as it was obvious the Court did not have all relevant information before it at the first hearing. I then heard affidavit evidence or comments from the following people:

1. Leoni Hodgson 2. Valarie Grace Wilkin 3. Edward Rare 4. David Rare 5. Sonja Rare 6. Robert Walford 7. Rebecca Walford

Written letters or supporting documents were also received from different whanau members not able to attend the hearings. The last hearing was held on 27 November 2003.

Arguments for the Applicants and Opposition

Basically, the case for the applicants is that an agreement was reached between the deceased and his brothers as to how Whangamata 4D1 C1 B should be physically divided between them all. The brothers then built baches based on that agreement and each of the families stay within their own boundaries. In other words, the will describes the area that the deceased was allocated pursuant to the agreement he reached with his brothers. Furthermore that agreement has been recorded in the Trust Order for the block.

Therefore, although there was a technical failure in terms of the will, the division of the deceased's shares in favour of those to whom he devised the land and the allocation of those shares in proportion to the area of land that they each seek


(based on a sketch plan produced during the hearings) provides sufficient clarity for the Court to be able to grant orders for succession in accordance with the will.

I note that the sketch plan produced carves the deceased's section into seven sites of almost equal size. Beginning from the Otahu River and estuary the sites are to be occupied by:

1. Leoni Hodgson 2. Sonia Rare 3. Deanna Wanklyn 4. Carole Wairehu 5. Rebecca Walford 6. Kelly Evernden 7. Edward Rare

The Court was advised that Spencer Martin Rare, one of the deceased's children not given an interest in Whangamata 4D1C1 B, supported the applicants.

If the Court were to find in favour of the applicants, the figures indicate that an equal allocation of shares could occur as follows:

Metric Conversion Acres 2

roods o

Perches 35

Conversion to ha 0.8979 Minimum House site is .1 OOOha

Total

David Edward

Grand Total

Area in Ha 1 0.179 2 0.17 3 0.1 96 4 0 796 5 .1795

6 0.8979

0.0813 0.0813

1.0605 2a :2r:19p

Share of Robert Rare 0.16558

Shares

0.1497 0.1497 0.1497 0.1496 0.1496 O.1Mlfl

0.033 0.03 0.0 o 312

.03312

0.16558

0.01721 0.01721

0.2000

.02760

.02760

.02760

.02760

.02759

.02759

Order amended pursuant to S 86/93 made at 158 Gis 121 dated 17 May 2004. Deputy Registrar.

The first problem is that this share allocation formula results in all. beneficiaries receiving more than a Y. acre share. The second problem is that the proponents of this way of allocating portions of the deceased's section, fail to take into account that an ahu whenua trust exists over the block. It is only for the trustees and/or the Maori Land Court to determine who, in accordance with the objects of the Trust , should occupy Whangamata 401 C1 B. Although those named in the will may end up with shares, there is no direct right to build . They would have to come to this Court and/or the trustees to obtain the necessary order or license.

Minute Book 157 GIS 248

Edward Rare and David Rare oppose the application for succession in accordance with the formula proposed by the applicants. They argue the provision in the will is too uncertain resulting in a partial intestacy. They want all the children of the deceased, excluding Edward, to receive equal shares in Whangamata 4D1 C1 B. Edward and David recognise that they should not succeed because they already have shares in the block. (See 155 GIS 266) They were, however, concerned for the other children of the deceased not devised an interest in Whangamata 4D1 C1 B: namely Robert Rare Jrns (deceased) whanau, Rita Kahu Bell, Rangitaka Des Rare Ngati-Pu and Joan Bobo Jentsch.

Rangitaka Des Rare Ngati-Pu and Joan Bobo Jentsch wrote to the Court and the former rescinded any interest he might have in the block if the letter he wrote dated 4 August 2003 was read by other members of the whanau in Court. Opportunity for this to happen was granted but the content of the letter, being reasonably sensitive and not directly relevant to the issues the Court was called on to determine, was not read into the record.

That is essentially the case for both sides of the whanau represented during the hearings.

Can I note that whanau members were each guilty of introducing a range of materials or topics that have no direct bearing on the issues that I am called on to determine. I do not propose canvassing any of this information, other than to state, it is personal in nature and it signals that a high degree of animosity exists between those entitled under the will and those who do not support them.

Relevant Law

The administration of Mr Rare's (deceased) estate, if it can be dealt with by this Court, must be completed in accordance with Part 4 of Te Ture Whenua Maori Act 1993. The two sections of the 1993 Act that are relevant are sections 113 and 117/93.

Section 113/932 provides:

113 Maori Land Court to determine beneficial entitlements to Maori land

(1) On an application by the administrator or by any person interested or by the Registrar, the Court shall determine the persons (in this section referred to as the beneficiaries) who are legally entitled to succeed to any beneficial freehold interest in Maori freehold land belonging to any estate to which this Part of this Act applies, and shall define the proportions of the several beneficiaries.

(2) Every determination made for the purposes of this section shall be recorded in the minutes of the Court, but it shall not be necessary for the Court to draw up in writing any order with respect to its determination.

(3) Where any freehold interest in land has been devised by will to a trustee other than a bare trustee, the trustee shall be deemed for the purposes of this section to be the beneficiary.


(4) In considering any application under this section, the Court may require such evidence as it thinks fit, but may, without further inquiry, accept the certificate of the administrator that the person named in the certificate is entitled to succeed to the interest to which the application relates.

(5) Until the Court has made a determination under this section in respect of any beneficial freehold interest in Maori freehold land belonging to any estate, no vesting order may be made in respect of that interest under section 117 or section 118 of this Act.

(6) The making of a determination under this section shall not absolve the executor or administrator from any liability incurred by the executor or administrator in respect of his or her duties.

Section 117/93 provides:

117 Vesting in persons beneficially entitled following grant of administration

(1) Subject to section 119 of this Act, where administration of any estate to which this Part of this Act applies has been granted, the Court may, on the application of the administrator or of any person interested, make an order vesting any beneficial interest in Maori freehold land belonging to the estate in the persons (in this section referred to as the beneficiaries) who are legally entitled to succeed to the interest.

(2) An administrator may make an application under this section notwithstanding that the interest to which it relates has not been vested in the administrator under section 112 of this Act .

(3) In disposing of any interest of a deceased owner under this section, the Court may exercise all or any of the following powers:

(a) The Court may exercise with respect to the whole or any part of the interest any jurisdiction that it would have had authority to exercise under any of the provisions of this Act, if application had been duly made in accordance with this Act and with the rules of Court: (b) The Court may, with the consent of a beneficiary, vest the

whole or any part of the interest of that beneficiary in any other person who is entitled to acquire or succeed to that interest: (c) The Court may give effect to any arrangement or agreement

whereby the interest of any beneficiary is to be vested in any other beneficiary or in any other person who is entitled to acquire or succeed to that interest, but no person shall be excluded from any interest to which that person is entitled without that person's consent.

(4) For the purposes of subsection (3)(c) of this section, any agreement or arrangement may, in the case of a person under disability, be entered into or made on behalf of that person by a


trustee appointed under Part 12 of this Act, or, if no such trustee is appointed, by any other responsible person.

(5) Where any beneficial freehold interest in land has been devised by the will of the deceased owner to a trustee other than a bare trustee, the trustee shall, for the purposes of this section, be deemed to be the beneficiary.

(6) In any case to which subsection (5) of this section applies, the existence of the trust shall be stated on the face of the relevant vesting order.

(7) Nothing in this section shall limit or affect any right or remedy to which any person may be entitled in respect of any act done by any other person as administrator of any estate.

(8) Any money held by the Maori Trustee or any other agent for any person at the date of that person's death, being the proceeds of the alienation of any Maori freehold land, shall be deemed for the purposes of subsection (3)(c) of this section to be interests in Maori freehold land; and the Court may dispose of that money accordingly by making an order for payment of it under section 242 of this Act.

(9) Nothing in subsection (8) of this section shall impose any liability on the Maori Trustee or other agent in respect of any payment out of the proceeds of sale after the death of the deceased if the payment was made by the Maori Trustee or other agent without knowledge of the owner's death.

Section 113/93 gives the Maori Land Court the power to determine the persons who are "legally entitled to succeed" to any beneficial freehold interest in Maori freehold land and to define the proportions of those people.

Mr Hall, for the applicants argued that under section 117/93 the Maori Land Court may, on an application, make an order vesting any beneficial interest in Maori land belonging to the estate in the persons (beneficiaries) who are legally entitled to succeed to the interest. This jurisdiction, Mr Hall submitted, provides the Maori Land Court with the power to consider whether a particular part of Ropata Rare's will falls into intestacy or whether it does not. He then cited a number of authorities that provide guidance to a Court of construction on how to interpret such provisions.

I note that we are dealing with a will that has received probate. In the case of all New Zealand wills, probate conclusively shows the state of the will at the time it was executed and as containing the whole will to be construed. The general law relating to the administration of estates applies to all estates. That law applies to Mr Rare's estate. Where there are issues concerning the interpretation of his will, it is for the High Court to determine and construe its meaning and effect, not this Court unless permitted to intervene pursuant to Part IV of Te Ture Whenua Maori Act 1993.

Te Ture Whenua Maori Act 1993 recognises this in sections 101 and 102/93. These provisions provide:


101 General law to apply subject to this Part

All other enactments and rules of law relating to-(a) Applications for and grant of administration of estates of

deceased persons; and (b) The administration of such estates; and (c) The bringing and settling of claims against such estates; and (d) Succession to property owned by deceased persons at their

death,-shall, in relation to estates to which this Part of this Act applies, be read subject to this Part.

102 Jurisdiction of High Court continued The High Court shall continue to have jurisdiction and authority in relation to-(a) The granting of administration of estates to which this Part of

this Act applies; and (b) The hearing and determining of proceedings in respect of

testamentary and other matters relating to such estates.

The only role the Maori Land Court can play in determining issues of construction, is the limited role provided for under section 101/93. The Act, constrains the testamentary freedom of the testator in a number of ways but the majority of those are not relevant to the inquiry that I have been asked to undertake.

The only inquiry that I can undertake is one restricted to whether the people named in the will are legally entitled to succeed? The only way of completing such an inquiry is to make some sense of the bequest in the will so as to ensure that the intention of the testator, Mr Rare, is given effect. It is clear that he wanted those people named in the will to succeed. I can see, therefore, no reason for not issuing an order in terms of section 113/93 declaring that those named in the will are legally entitled to succeed. Arguments that this is an important block for all the deceased's children with significant hapultribal values based on the traditional history of the area can not over-ride the clear intention of the testator in this case. Nor does section 2, 17 or the Preamble of Te Ture Whenua Maori Act 1993 limit this Court's duty to give effect to that intention as the principles of retention and use are not undermined.

The next issue is, does this Court have jurisdiction to give effect to Mr Ropata Rare's intentions as provided for in the will by substituting a share allocation scheme and vesting those shares in accordance with section 117/93? The answer to that question must depend on whether or not his interest in Whangamata 4D1C1 B was sufficiently described for there to be certainty as to the nature of the property bequeathed . Although there is a misdescription of the property in the will (ie use of land area rather than shares) that does not result in a situation where the object of the bequest is so uncertain as to render it unidentifiable. In fact, the description Mr Rare used is understandable given the history of the agreement between the Rare brothers and the basis of the ahu whenua trust.

In my view, after visiting the block and having regard to the evidence before the Court, it is possible to identify the object of the bequest with some certainty. The share allocation scheme of equal shares to each beneficiary would not work as each person named in the will would receive more of an interest in the land than he intended. But a scheme where each beneficiary receives a share value amounting to a Y. acre each would. That would leave a residue of shares, which will need to be


dealt with as a partial intestacy. The residue of shares can then be divided equally among all the children of the deceased who have not renounced an entitlement. In my view, this allocation scheme more closely resembles the scheme of distribution Mr Rare intended.

In making such a finding this Court has not made orders that contravene section 1 02(b)/93 which provides that the hearing and determining of proceedings in respect of testamentary and other matters relating to such estates is a matter for the High Court. See for example Souster v Castle" Alt cit Castle, Re (Deceased) (1995) Unreported M1243/93 (High Court) where after receiving probate, the High Court was called upon to ascertain the meaning of testamentary provisions concerning Maori land. Rather the orders are made because sections 113 and 117/93 require that I inquire into and ascertain who are legally entitled .

Therefore, the Maori Land Court does have jurisdiction to make orders declaring those named in the will are legally entitled to succeed and to vest in accordance with the scheme approved by this Court. It also has jurisdiction to declare the residue of shares should be divided equally among all the children of the deceased who have not renounced an entitlement.

Orders and Directions

1. As this Court has jurisdiction to make a declaration under section 113/93, and to vest Whangamata 4D1 C1 B in accordance with section 117/93 in accordance with the scheme for the allocation of shares described above, orders are to issue accordingly.

2. Given the current state of the ahu whenua trust over the land, the Registrar (Gisborne) is directed, through the Hamilton Office, to call and conduct a meeting of owners of Whang am at a 4D1C1 B to:

• Elect new trustees for nomination for appointment to the Court; • Ascertain who is currently occupying the block; and • Review the Ahu Whenua Trust Order.

That meeting is to be conducted within three months. The Registrar is directed to report to the Court on the outcome of that meeting, no later than 14 days thereafter. Once that report has been received further directions may be issued.

3. The current trustees are to be notified by the Registrar that due to their failure to comply with previous Court directions, and pursuant to section 37(3)/93, this Court will consider whether they should be removed from office as trustees pursuant to section 240/93.

4. The Registrar is directed to organise a fixture date for a hearing of the outstanding issues concerning the operation of the Trust.

JUDGE

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