in the mĀori land court of new zealand ......tui pipiwharauroa anderson rahera sadie anderson m m m...

2013 Chief Judge’s MB 783

IN THE MĀORI LAND COURT OF NEW ZEALAND TAITOKERAU DISTRICT

A20090016043 CJ 2009/36

UNDER

Section 45, Te Ture Whenua Māori Act 1993

IN THE MATTER OF

Paul Anderson also known as Paoro Anderson or Paul Anihana or Paoro Anihana (Jnr), deceased and an order of the Māori Land Court made on 22 August 2008 at 9 Whangarei (succession) MB 77-80

BETWEEN

ANNA ANDERSON Applicant

Judgment:

08 October 2013

DECISION OF CHIEF JUDGE W W ISAAC


Introduction

[1] This application was filed by Anna Anderson (“the applicant”) under s 45 of Te

Ture Whenua Māori Act 1993 (“the Act”) on 1 October 2009. The applicant seeks to

amend a succession order dated 22 August 2008 at 9 Whangarei (Succession) MB 77-80 in

respect of her brother Paul Anderson also known as Paoro Anderson or Paul Anihana or

Paoro Anihana (Jnr), deceased (“the deceased”).

[2] The applicant claims that she has been adversely affected by the order to which the

application relates because as trustee/executor of the deceased’s will, she was in charge of

making sure the terms of the deceased’s will were carried out.

[3] The applicant further claims that:

(a) There has been an error in the presentation of facts of the case to the Court

because the applicant in the order complained of stated under oath, that the

deceased did not leave a will, when in fact he did;

(b) All the children in the deceased’s will should have received an interest in the

blocks, namely Shona Grimmig also known as Shona Grimming, Grimmia

or Anderson (hereafter in referred to as Ms Grimmia); and

(c) To exclude Ms Grimmia from succession to the deceased’s bequeathed

interests would be contrary to his wishes as he wanted to give his daughter

and her other siblings their right to reconnect to the whenua that their

tupuna/ancestors once lived and walked on.

Background

[4] The Case Manager’s Report and Recommendation dated 30 August 2012 sets out

the background to the application. The Report is produced in full below:


APPLICATION UNDER SECTION 45 OF TE TURE WHENUA MĀORI ACT 1993 REPORT AND RECOMMENDATION Introduction

1. This application filed by Anna Anderson (“the Applicant”), pursuant to

section 45 of Te Ture Whenua Māori Act 1993, seeks to amend an Order dated 22 August 2007 at 9 Whangarei (Succession) MB 77-80, relating to the interests of Paul Anderson, also known as Paoro Anderson, Paul Anihana, or Paoro Anihana (Jnr) (“the deceased”), in Papua D and Waihou A2A1 (“the blocks”).

2. The Applicant is the deceased’s sister, and trustee/executor in his will.

She seeks to have the deceased’s will carried out as per his wishes with all his children as named in his will, namely Shona Grimmig also known as Shona Grimming, Grimmia or Anderson (herein referred to as Ms Grimmia), receiving an interest in the blocks.

3. The Applicant believes the Order is incorrect by reason of a mistake,

error, or omission in the presentation of the facts of the case to the Court on the grounds that Marama Pritchard (another of the deceased’s and the Applicant’s sister), in the Order complained of, “under oath stated that my brother Paul Anderson never left a will nor any assets and all who gave evidence or information at the hearing were aware of the will.”

4. The Applicant claims that she has been adversely affected by the

Order because it was up to her to make sure the terms of the deceased’s will were carried out. The deceased “felt safe that his shares in land would be distributed amongst his children as named in his will.”

5. The Applicant further submits:

To exclude Shona from succession to Paul’s bequeathed interests would be contrary to his wishes... more serious ramifications... Shona, her children and her descendants to come, having their place within our whakapapa/geneology that is theirs by birthright. To deny this would be to eradicate their history and to deny them their connection to their whenua/land. Paul wanted to give his daughter Shona and her other siblings their right to reconnect to the whenua that their tupuna/ancestors once lived and walked on. .... I feel ashamed and embarrassed by the actions taken by my sister, the applicant [at the lower Court hearing] and supported by other whanau/family. In my opinion my sister, the applicant and other whanau members do not have the right to contest or disapprove of what my brother and parents have already sanctified.1 My brother Paul continued to affirm this by acknowledging Shona in his will... It would be detrimental to the trust that Paul had in me if I did not correct nor challenge what members of my whanau are doing to our niece.

1 The applicant is referring to when Shona came in search of her father and met the deceased parents also, where they acknowledged Shona as their eldest moko.


Concise history of Order sought to be amended

6. On 22 August 2007 at 9 Whangarei (Succession) MB 77-80, the Court heard an application filed by Marama Pritchard, for succession to the Māori land interests of the deceased.

7. Ms Pritchard stated to the Court, the following, under oath:

The deceased was my brother. He died on 8 September 1999 at Papatoetoe as evidenced by the Death Certificate filed. I was present at the funeral. He left no will, nor any assts, which required a grant of Administration. The deceased married Gloria (Flesher) Anderson who predeceased the deceased and had the following issue: 1st Family – Unknown Union

No. Name Sex

1 Shona (Anderson) Grimmia Fa 2nd Family – Gloria (Flesher) Anderson

No. Name Sex 2

3

4

5

6

7

8

Hayden Anderson

Takuwai Anderson

Paul (Jnr) Anderson

Taute Herewini Anderson

Charles Edward Anderson

Tui Pipiwharauroa Anderson

Rahera Sadie Anderson

M

M

M

M

M

F

F

8. The Court had a discussion with Ms Pritchard regarding Ms Grimmia

and she informed the Court that Ms Grimmia had been legally adopted out but that they wanted to include her in the succession as “it is her birth right and also for her children”.

9. Adoption papers were not presented and the Court made the Orders

conditional on Ms Pritchard providing proof of the adoption of Ms Grimmia by 31 October 2007.

10. In the subsequent minute on 19 August 2008 at 10 Whangarei

Succession MB 15-17, the Court heard evidence from Ms Pritchard that after an attempt to gain information on the adoption of Ms Grimmia she had been met with confidentiality and privacy issues, and was not able to get the information.

11. Judge Spencer asked Hayden Anderson (eldest son of the deceased

and the only child present), what his thoughts were on including Ms Grimmia in the succession:

Court: Hayden, the issue is frankly, whether or not we include Shona in the succession. But there has been nothing to establish


that she was, in fact, a daughter of your late father. Given that we haven’t had any evidence to that effect, then I’m with the view that the succession should be made to the children of your father to Gloria Flesher or Anderson, and would not include Shona. What is your view. Do you consider that would be a reasonable approach? H Anderson: Yes. After thinking about it for the past few months, yes I do. Court: After consideration for a few months, you accept that in the event we are unable to establish that in fact, Shona is a child within the whakapapa, in which case we have no alternative but to omit her from the succession. H Anderson: Yes.

Accordingly, Orders were made omitting Ms Grimmia from the succession to the deceased, and in terms of the minutes of the hearing on 22 August 2007 at 9 Whangarei (succession) MB 77-80.

Identification of evidence that may be of assistance in remedying the mistake or omission

12. The Applicant has provided the following documents in support of her application:

a. A letter dated 1 August 2009 and received by us on 6 August

2009, detailing how the Applicant (Anna Anderson) has been adversely affected by the Order;

b. A certified copy of the deceased’s will dated 24 August 1999, the

applicable section being clause 9 –

I GIVE all my estate to my trustees upon trust (a) ... (b) To divide the residue (“my residuary estate”) equally between such of my children SHONA GRIMMING, HADEN ANDERSON, TAKAWAI ANDERSON, TAUTE HIRIWINI ANDERSON, CHARLES EDWARD ANDERSON, TUI ANDERSON and RAHERE SADY ANDERSON as survive me and attain the age of twenty (20) years... DATED this 24 August 1999

c. A certified copy of the probate dated 1 October 1999; d. A certified copy of the power of attorney dated 28 July 1999; e. A certified copy of Shona Anderson or Grimmig’s birth

certificate; f. A certified copy of the Adoption Order of Shona Pauline Prime; g. Two certified copies of entries into the Register Book of Births

for Shona Pauline dated 2 August 1989 and 23 January 1961; h. A certified copy of a marriage certificate of Shona Pauline Heuer

to Dietger Joachim Grimmig dated 29 June 1979;


i. A certified copy of a National Women’s Hospital Green Lane

West birth card for ‘Baby Anderson’ dated 30 January 1957; and j. A whakapapa of Shona Anderson;

Details of subsequent Orders affecting lands to which application relates

13. There are no subsequent Orders affecting the lands in which the application relates.

Details of payments made as a result of the Order

14. A response was received from The Māori Trustee on 9 November 2011 indicating none of the affected blocks are administered by them.

Reference to areas of difficulty

15. There is minor confusion with the surname of Ms Grimmia –

a. Born Shona Pauline Anderson (30 January 1957); b. Named as Shona Pauline Prime on the Adoption Order (11 April

1968) and name then changed to Shona Pauline Heuer; c. Took husbands surname ‘Grimmig’ as stated on marriage

certificate (29 June 1979); d. Named in deceased’s will as Shona Grimming (24 August 1999); e. Named in the court minutes of 22 August 2007 and 19 August

2008, as Shona (Anderson) Grimmia; f. The Applicant gives the address of Shona ‘Grimmig’ using the

surname as stated on her marriage certificate.

Materially however, this poses no substantial issue as they are all one and the same person.

16. The Applicant provided an address for Ms Grimmia in Germany, and

notice was sent to her regarding this application on 13 October 2011, however we have not had any response and are unsure as to whether she is even aware of the application.

17. There is a question of whether Ms Grimmia is legally entitled to

succeed to the deceased’s interests if she was legal adopted by the Heuer family.

Legal Adoption Status in a Succession

18. Judge Ambler approached this area in the Order complained of made on 22 August 2007 at 9 Whangarei (Succession) MB 77-80 – “the legal position is that if she’s been adopted out and your brother died without a will then she’s not entitled to succeed”. His Honour then


couched that with the option of a whānau trust which could provide for Ms Grimmia to be recognised as a descendant of the deceased.

19. Had the Court been made aware of the existence of the deceased’s will

at the time of the hearing, a determination may have been able to be made as to Ms Grimmia’s status in terms of the legislation and the statement in the will.

20. Section 16 (2)(a) of the Adoption Act 1955 states that “the adopted

child shall be deemed to become the child of the adoptive parent”. This meaning that the child is no longer a child of the natural parents and becomes the child of the adoptive parents.

21. Section 108 of Te Ture Whenua Māori Act 1993 deals with disposition

by will and the preferred class of alienee (“PCA”) by stating at subsection (2) that:

(2) An owner of a beneficial interest in Māori freehold land may leave that interest by will to any person who belongs to any 1 or more of the following classes:

(a) Children and remoter issue of the testator: (b) ... (c) Any other persons who are related by

blood to the testator and are members of the hapū associated with the land:

(d) ...

22. Does it therefore follow that if a child has been legally adopted and now deemed to be the child of the adoptive parents are they of no relation to their birthparents with any blood or hapū link is severed?

23. The main issue is therefore whether, even though legally adopted out,

Ms Grimmia is still related to the deceased ‘by blood’, or still a member of ‘the hapū associated with the land’.2

24. The will of the deceased was executed after the adoption of Ms

Grimmia showing that the deceased clearly knew his natural daughter was adopted but still wanting to acknowledge the relationship and include her in his will. Whether he was aware of the legal affect of a legal adoption, or of the restrictions Te Ture Whenua Māori Act 1993 places on Māori land and dispositions by wills, should make up part of the consideration by the Chief Judge.

Consideration of whether matter needs to go to full hearing

25. The Order complained of was made on the pretence that there was no

will, when in fact there was. The Court therefore heard the evidence in error and made decisions which were not based on the real facts or the intentions of the will maker.

26. The fact that Ms Grimmia was legally adopted out however presents a

problem over whether she is still related by blood to the testator and or is a member of the hapū associated with the land. Regardless, the

2 Section 108, Te Ture Whenua Māori Act 1993.


Order was made without the full facts, namely the will, and should therefore be cancelled. Further, a Court hearing is considered necessary to re-determine the deceased’s estate taking into account the will and the specific facts of the relationship between Paul Anderson and Shona Grimmia at the time of the will.

Recommendation of course of action to be taken

27. If the Chief Judge is of a mind to exercise his jurisdiction, then it would be my recommendation that:

a) A copy of this Report be sent to all affected parties to give them

an opportunity to comment or respond, in writing, within 28 days of the date of this Report;

b) After the expiration of the 28 days, then the matter be referred

to the Court for hearing with the recommendation that at that hearing the Order complained of be cancelled and the questions of testamentary freedom in conjunction with section 108 of Te Ture Whenua Māori Act 1993 versus the legal status of a child adopted out under the Adoption Act 1955 be decided upon.

[5] On the 31 August 2012 the Case Manager’s Report and Recommendation was sent

to all parties. Several letters in support were received with one objection received on 28

September 2012 from Taute Herewini Anderson (the deceased’s son).

[6] In his objection Mr T.H. Anderson requested that the hearing be postponed in order

for him to have a hui with his siblings to discuss the application. He also requested to have

until the end of November 2012 to address the Report and Recommendation in its entirety.

[7] On 19 December 2012, the Case Manager wrote to Mr T.H. Anderson requesting an

update but no response was received. A follow up letter was sent to Mr T.H. Anderson on

18 January 2013.

[8] On 30 January 2013 Mr T.H. Anderson responded advising that the hui had taken

place with each person who attended in the process of writing to the Court about what had

been agreed. Mr T.H. Anderson intended to forward a copy of the hui minutes to the Court.

Another month extension to file the letters from whānau was also requested and was

granted to 31 March 2013. Nothing further however, was received from Mr T.H. Anderson.

[9] In May 2013 a telephone discussion between the applicant and the Case Manager

took place and a Deed of Family Arrangement which was made in 2000, was referred to.


This prompted a Supplementary Report and Recommendation to be compiled by the Case

Manager. A copy of this Report is produced in full below:

APPLICATION UNDER SECTION 45 OF TE TURE WHENUA MĀORI ACT 1993 SUPPLEMENTARY REPORT

Introduction

1. It has since come to light that a Deed of Family Arrangement made in 2000 by the children of the deceased and the trustees is applicable in this matter, and should be included in the Court record and referred to the Chief Judge for his Honour’s consideration prior to the issuing of his Honour’s decision on this application.

2. On 5 October 2012 the Court issued the Reserved Judgment of Chief Judge Isaac - Estate of Ross Glencairn Hovell (2012) 25 Tairawhiti MB 258 – 261 (25 TRW 258).

3. This case sets a precedent for this application but was unavailable at the date the Report and Recommendation was distributed.

4. These two issues are the basis for this Supplementary Report.

Background

5. On 1 October 2009 Anna Anderson (“the applicant”) filed a section 45 application under of Te Ture Whenua Māori Act 1993. The application seeks to amend a succession order dated 22 August 2007 at 9 Whangarei (Succession) MB 77-80, relating to the interests of Paul Anderson, also known as Paoro Anderson or Paul Anihana or Paoro Anihana (Jnr) (“the deceased”), in Papua D and Waihou A2A1 (“the blocks”).

6. On 31 August 2012 a Report and Recommendation concerning the application was distributed to the applicant and affected parties. The recipients had 28 days in which to respond in writing to the Court, should they wish to.

7. To date the Court has received the following responses: a) 12 September 2012 – Anna Anderson (applicant) – in support;

b) 18 September 2012 – Maggie Wikaira (the deceased’s sister) – in support;

c) 18 September 2012 – Fred Rangaunu Anderson (the deceased’s brother) – in support;

d) 28 September 2012 – Keri Gardiner (nee Anderson) (the deceased’s niece) – in support;

e) 28 September 2012 – Taute Herewini Anderson (the deceased’s son) on behalf of his siblings – in opposition;


f) 11 October 2012 – Caroline Lily Schipplock (the deceased’s sister) – in support.

8. Taute Herewini Anderson’s objection of 28 September 2012, requested the

hearing be postponed in order for him to have a hui with his siblings to discuss the application and send a letter to the Court addressing the issues. Mr T.H. Anderson requested the Court give him till the end of November 2012 for the hui and to address the Report and Recommendation in its entirety.

9. On 19 December 2012, the Case Manager wrote to Mr T.H. Anderson requesting an update - no response was received. A further letter was sent to Mr Anderson on 18 January 2013 again, requesting another update.

10. On 30 January 2013 Mr T.H. Anderson responded advising that the hui had taken place with each person who attended in the process of writing to the Court about what had been agreed on. Those that attended the hui were Tui and Rahera Anderson, Charles Anderson (represented by Mr T.H. Anderson) and Mr T.H. Anderson. The Court was advised that the family had not yet made contact with Hayden3 and Takuwae, their eldest brothers. Mr Anderson intended to forward a copy of the hui minutes to the Court and he also requested another month to file the letters from whānau and was granted until 31 March 2013 after which time Mr Anderson was advised, the application would be referred to the Chief Judge to issue a decision on the papers taking into consideration a recent case that has set a precedent for cases such as these.

11. The Court has not heard from Mr T.H. Anderson since his last correspondence on 30 January 2013.

12. In reviewing the file it was noted that while Paul Anderson Jnr received interests as a child of the deceased at the order complained of, he was not named in the deceased’s will.

13. A previous succession to Wahapo Tipene or Hiri Wahapo Rameka Eru or Wahapo Rameka Eru (the deceased’s grandmother) at 5 Kaikohe (Succession) 197-201 on 31 October 2005, listed six of the deceased’s children, however Paul Anderson Jnr and Shona Grimmia were omitted.

14. At the hearing of the order complained of the Deputy Registrar referred to the abovementioned omission –

I refer to reference 5 Kaikohe (Succession) MB 197-201 dated 31 October 2005, wherein the Court identified Paul Anderson (the above deceased) as a descendant of Wahapo Tipene and Son if [sic.] Kohe Rahera Anderson, as deceased. Evidence shows that Paul Anderson only had 6 children. The applicant Marama Pritchard has informed the Court that the deceased has 8 children. Shona (Anderson) Grimmia, being adopted out and Paul Anderson (Jnr), who was not named. The applicant has advised that she will provide details of adoption and death certificate of Paul Anderson.

15. Ms Pritchard supplied a copy of the death certificate of Paul Anderson

which stated that he had two daughters and five sons. On the application 3 ‘Hayden’ Anderson is sometimes spelt alternatively as ‘Haden’ Anderson.


form however, it states that the birth certificate for Paul Anderson Jnr was ‘to be produced’, but it does not appear that a copy of this is on the lower Court record or referred to at the hearing.

16. Since reviewing these details, it has also come to light that a Deed of Family Arrangement filed with the Court on 27 February 2012 by the applicant is important in the outcome of this matter.

Deed of Family Arrangement

17. The Deed of Family Arrangement (“the deed”) was made on 15 May 2000. The will had been signed and dated earlier on 24 August 1999.

18. A extract of the deed is set out on the following page (3):

THIS DEED of Family Arrangement is made on 15th day of May 2000 BETWEEN HADEN ANDERSON of Auckland, TAKAWAI

ANDERSON of Auckland, TAUTE HIRIWINI ANDERSON of Auckland, CHARLES EDWARD ANDERSON of Auckland and TUI ANDERSON of Brisbane, Australia (“the primary beneficiaries”)

AND PAUL ANDERSON JUNIOR of Auckland and

RAHERA SADY ANDERSON of Auckland, Solicitor (“the Trustees”)

AND ANNA ANDERSON of Auckland, Kai Awhina and

SHARYN DENISE OTENE of Auckland, Solicitor (“the Trustees”)

WHEREAS:

A. PAUL ANDERSON late of Auckland. Retired (“the Deceased”) died on the 8th day of September 1999 B. Probate of his will dated 24 August 1999 was granted to the Trustees by the High Court at Auckland on 1 October 1999. C. In terms of clause 3 to 8 of the Deceased’s will (a copy of which is attached to this deed and marked “A”) various bequests were made to the primary beneficiaries and to SHONA GRIMMING D. In terms of clause 9(b) of the Deceased’s will his Residuary Estate (as defined in the will) was given to the Trustee upon Trust to be divided equally between the primary beneficiaries’ and the said SHONA GRIMMING and the said RAHERA SADY ANDERSON (named in the will as RAHERE SADY ANDERSON). E. The primary and secondary beneficiaries now wish bequests of $5,000.00 to be paid to PAUL ANDERSON JUNIOR and $1,000.00 to RAHERA SADY ANDERSON and for each of them to share equally in the Residuary Estate. SHONA GRIMMING does not agree to the said distribution. The Trustees


are willing to distribute the estate as requested by the primary and secondary beneficiaries provided SHONA GRIMMING receives her entitlement under the will and provided the primary and secondary beneficiaries enter into this deed.

BY THIS DEED:

1. The primary and secondary beneficiaries direct the Trustees

after payment to SHONA GRIMMING of the bequest and share in the Residuary Estate to which she is entitled under the will to:

(a) make bequest of $5,000.00 to PAUL ANDERSON

JUNIOR;

(b) make a bequest of $1,000.00 to RAHERA SADY ANDERSON; and

(c) divide such of the Residuary Estate then remaining

equally among them.

2. ...

19. The following nine people had signed the deed: 1) Haden Anderson; 2) Takawai Anderson; 3) Taute Hiriwini Anderson; 4) Charles Edward Anderson; 5) Tui Anderson; 6) Paul Anderson Junior; 7) Rahera Sady Anderson; 8) Anna Anderson; and 9) Sharyn Denise Otene.

Discussion

20. It appears the deed was the vehicle that enabled Paul Anderson Jnr to

receive interests in the deceased’s estate when he was not named in the will. However at the order complained of he received interests anyway, as a child of the deceased, along with his six siblings, without the will being presented.

21. From the recent decision of Estate of Ross Glencairn Hovell (2012) 25 Tairawhiti MB 258 – 261 (25 TRW 258), it is now confirmed that where a child has been legally adopted out of the whānau under the Adoption Act 1955, but they have been named in a will which involves Māori Land interests, they may be entitled to receive land interests as per the terms in the will and under section 108 of Te Ture Whenua Māori Act 1993 (“the Act”).

22. Section 108 of the Act provides as follows:

108 Disposition by will

(1) Except as provided by subsections (2) and (3), no owner of


any beneficial interest in any Māori freehold land has the capacity to dispose of that interest by will.

(2) An owner of a beneficial interest in Maori freehold land may leave that interest by will to any person who belongs to any 1 or more of the following classes:

(a) children and remoter issue of the testator:

(b) any other persons who would be entitled under section 109(1) to succeed to the interest if the testator died intestate:

(c) any other persons who are related by blood to the testator and are members of the hāpu associated with the land:

(d) other owners of the land who are members of the hāpu associated with the land:

(e) whāngai of the testator:

(f) trustees of persons referred to in any of paragraphs (a) to (e).

23. If the will is then applied as the applicant’s section 45 application claims it should be, the order complained of will be amended to reflect the terms in the will and the deed, attached to the will and agreed upon by all the children of the deceased, aside from Shona Grimmia, will also be applied given that the family wanted to include Paul Anderson Jnr.

Applying the Will and Deed

The Will

24. Clause 9(b) - the residuary clause, states the residue is to be divided equally between:

1) Shona Grimming; 2) Haden Anderson; 3) Takawai Anderson; 4) Taute Hiriwini Anderson; 5) Charles Edward Anderson; 6) Tui Anderson; 7) Rahere Sady Anderson.

The Deed

25. In the deed it is stated that Shona Grimming does not agree to the said

distribution (namely that at paragraph ‘E’ of the deed) but that the Trustees are willing to distribute the estate as requested by the primary and secondary beneficiaries provided Shona Grimming receives her entitlement under the will and provided the primary and secondary beneficiaries enter into this deed.

http://www.legislation.govt.nz/act/public/1993/0004/latest/link.aspx?id=DLM291241�


26. This is further reiterated in the next section of the deed at paragraph 1 (‘By the Deed’).

27. The primary and secondary beneficiaries did enter into the deed and therefore the residuary estate would be divided as follows: Taitokerau District

Blocks Shares

Papua D 0.386 Waihou A2A1 0.855

28. Papua D block - 0.386 shares:

No. Name Shares per will Shares per deed **

1. Shona Grimming 0.055 (1/7) 0.055 2. Haden Anderson 0.056 (1/7) 0.048 3. Takawai

Anderson 0.055 (1/7) 0.048

4. Taute Hiriwini Anderson

0.055 (1/7) 0.047

5. Charles Edward Anderson

0.055 (1/7) 0.047

6. Tui Anderson 0.055 (1/7) 0.047 7. Rahere Sady 0.055 (1/7) 0.047 8. Paul Anderson

Jnr 0.000 0.047

29. Waihou A2A1 - 0.855 shares:

No. Name Shares per will Shares per deed **

1. Shona Grimming 0.122 (1/7) 0.122 2. Haden Anderson 0.123 (1/7) 0.105 3. Takawai

Anderson 0.122 (1/7) 0.105

4. Taute Hiriwini Anderson

0.122 (1/7) 0.105

5. Charles Edward Anderson

0.122 (1/7) 0.105

6. Tui Anderson 0.122 (1/7) 0.105 7. Rahere Sady 0.122 (1/7) 0.104 8. Paul Anderson

Jnr 0.000 0.104

** Because the deed was entered into after the will, the deed should be read alongside the will.

Areas of difficulty

30. It is still unclear from the Court record whether Paul Anderson Jnr was a biological child of the deceased even though the family wished him to benefit in their father’s estate with the enacting of the deed in 2000 and that


he was named as a child of the deceased at the order complained of by Marama Pritchard, the deceased’s sister (aside from the deed being made).

31. At the hearing of the order complained of in 2007, Marama Pritchard, Maylene Pritchard, Caroline Schipplock, Hayden Anderson and Paul Anderson Jnr were present. Both Hayden and Paul had signed the deed in 2000 which refers to the will of the deceased. The Court however proceeded under the impression there was no will.

Recommendation of course of action to be taken

32. A copy of this Supplementary Report is to be sent to all affected parties to give them an opportunity to comment or respond, in writing, within 14 days.

33. If no objections are received, then an order be made pursuant to section 44(1) of Te Ture Whenua Māori Act 1993 amending the order complained of at 9 Whangarei (Succession) MB 77-80, by including all the children, as listed below, in the estate of the deceased, as per the terms of the will and the deed in the proportions as set out as follows: a) Papua D block - 0.386 shares:

b) Waihou A2A1 - 0.855 shares: No. Name Shares per will and deed

1. Shona Grimming 0.122 2. Haden Anderson 0.105 3. Takawai Anderson 0.105 4. Taute Hiriwini Anderson 0.105 5. Charles Edward Anderson 0.105 6. Tui Anderson 0.105 7. Rahere Sady 0.104 8. Paul Anderson Jnr 0.104

34. And a further order be made pursuant to section 47(4) of Te Ture Whenua Māori Act 1993 making all other consequential amendments.

35. If objections are received then the matter should be referred to the Court for directions.

No. Name Shares per will and deed

1. Shona Grimming 0.055 2. Haden Anderson 0.048 3. Takawai Anderson 0.048 4. Taute Hiriwini Anderson 0.047 5. Charles Edward Anderson 0.047 6. Tui Anderson 0.047 7. Rahere Sady 0.047 8. Paul Anderson Jnr 0.047


[10] On 3 July 2013, the period for responses to the Supplementary Report expired, with

no responses received.

Discussion

[11] Under s 44 of Te Ture Whenua Māori Act 1993 the Chief Judge may cancel or

amend an order made by the Court or a Registrar, if satisfied that the order was erroneous

in fact or in law because of any mistake or omission on the part of the Court or the

Registrar or in the presentation of the facts of the case to the Court or the Registrar. The

Chief Judge may also make such other orders as, in the opinion of the Chief Judge, is

necessary in the interests of justice to remedy the mistake or omission.

[12] Having considered the Case Manager’s Report, it is clear that there was an error

made in the presentation of the facts of the case to the Court, namely, that the applicant in

the order complained of stated that the deceased did not have a will when in fact he did

have a will dated 24 August 1999.

[13] As a consequence the succession should have considered the entitlement under the

will and not as if the deceased died intestate.

[14] Section 108 of the Act provides as follows:

108 Disposition by will

(1) Except as provided by subsections (2) and (3), no owner of any beneficial interest in any Maori freehold land has the capacity to dispose of that interest by will.

(2) An owner of a beneficial interest in Maori freehold land may leave that interest by will to any person who belongs to any 1 or more of the following classes:

(a) children and remoter issue of the testator:

(b) any other persons who would be entitled under section 109(1) to succeed to the interest if the testator died intestate:

(c) any other persons who are related by blood to the testator and are members of the hapu associated with the land:

(d) other owners of the land who are members of the hapu associated with the land:

(e) whangai of the testator:

(f) trustees of persons referred to in any of paragraphs (a) to (e).

http://www.legislation.govt.nz/act/public/1993/0004/latest/link.aspx?id=DLM291241�


[15] The question is whether Ms Grimmia is a person entitled in terms of s 108 of the

Act.

[16] It is accepted that Ms Grimmia was born a daughter of the deceased but was legally

adopted out of the whānau.

[17] The relevant provisions of the Adoption Act 1955 provide as follows:

16 Effect of adoption order

...

(2) Upon an adoption order being made, the following paragraphs of this subsection shall have effect for all purposes, whether civil, criminal, or otherwise, but subject to the provisions of any enactment which distinguishes in any way between adopted children and children other than adopted children, namely:

...

(b) the adopted child shall be deemed to cease to be the child of his existing parents (whether his natural parents or his adoptive parents under any previous adoption), and the existing parents of the adopted child shall be deemed to cease to be his parents, and any existing adoption order in respect of the child shall be deemed to be discharged under section 20: provided that, where the existing parents are the natural parents, the provisions of this paragraph shall not apply for the purposes of any enactment relating to forbidden marriages or civil unions or to the crime of incest:

...

(e) subject to the Citizenship Act 1977, the adoption order shall not affect the race, nationality, or citizenship of the adopted child.

[18] In relation to s 16(2)(b) of the Adoption Act 1955 the decision of Justice Wild in

Sainsbury v Graham [2009] NZFLR 173 set out the legal position that the link between

child and mother were severed and the adopted child was not entitled to claim against the

estate. On this basis Ms Grimmia would not be entitled as a child under s 108 (2)(a) Te

Ture Whenua Māori Act 1993.

[19] Section 16 (2)(e) of the Adoption Act 1955 however clearly sets out that the

adoption order does not affect the race, nationality or citizenship of the adopted child.

[20] It is my view that s 16 (2)(e) aligns with s 108 (2)(c) Te Ture Whenua Māori Act

1993 which determines entitlement in terms of blood and the hapu associated to the land.

http://www.legislation.govt.nz/act/public/1955/0093/latest/link.aspx?id=DLM293308�http://www.legislation.govt.nz/act/public/1955/0093/latest/link.aspx?id=DLM443683�


[21] In simple terms neither s 16 (2)(e) Adoption Act 1955 nor s 108 (2)(c) Te Ture

Whenua Māori Act 1993 sever a person’s blood connection to the land.

[22] As a result, I find that Shona Grimmia is a person entitled in terms of s 108(2)(c)

and therefore, the terms in the deceased’s will and the deed should and can be given effect

to.

[23] Accordingly, the order dated 22 August 2008 at 9 Whangarei (Succession) MB 77-

80 should be amended to include all eight children of the deceased in the succession, in

shares, as per the will and deed of the deceased.

Te Karae

[24] On 17 June 2013 the Applicant contacted the Court to make enquiries as to why the

Te Karae block was not listed as being a block that would have its shareholdings amended

should the order complained of be amended.

[25] The succession to the Te Karae block, in respect of the estate of Wahapo Tipene

(the deceased’s grandmother), had occurred on 31 October 2005 at 5 Kaikohe (Succession)

MB 197-201, four years earlier than the order complained of in this application but

following the death of Paul Anderson. This succession order allowed for succession to

Wahapo Tipene to Paul’s children with the exception of Paul Anderson Jnr and Shona

Grimmia.

[26] Having regard to my order as set out above at paragraph 24, Paul Anderson Jnr and

Shona Grimmia should have received an interest in Te Karae 1 Section 67.

Orders

[27] As a result of the above discussion. I make the following orders under Te Ture

Whenua Māori Act, in respect of all the Māori land interests of the deceased as follows:

(a) Section 44 (1) amending the succession orders dated:


(i) 22 August 2008 at 9 Whangarei (Succession) MB 77-80 to include

Shona Grimmia as a successor to Paoro Anderson or Paul Anihana or

Paoro Anihana (Jnr); and

(ii) 31 October 2005 at 5 Kaikohe (Succession) MB 197-201 to include

Shona Grimmia and Paul Jnr Anderson as a successor to Paoro

Anderson or Paul Anihana or Paoro Anihana (Jnr);

(b) Amending the other beneficially entitled persons interests as per the will and

deed in the following proportions:

Taitokerau District

Beneficiaries/ Successors:

Blocks Shares Papua D 0.386


1. Shona Grimmig also known as Shona Grimming, or Shona Grimmia

0.055

2. Haden Anderson 0.048

3. Takawai Anderson 0.048

4. Taute Hiriwini Anderson 0.047

5. Charles Edward Anderson 0.047

6. Tui Anderson 0.047

7. Rahere Sady 0.047

8. Paul Anderson Jnr 0.047


Taitokerau District


Taitokerau District


Blocks Shares Waihou A2A1 0.855



0.122

2. Haden Anderson 0.105

3. Takawai Anderson 0.105

4. Taute Hiriwini Anderson 0.105

5. Charles Edward Anderson 0.105

6. Tui Anderson 0.105

7. Rahere Sady 0.104


Blocks Shares

Te Karae 1 Section 67 0.22782


1. Haden Anderson (Hetana Haden Anderson on order)

0.02790

2. Takawai Anderson (Takuwai on order)

0.02790

3. Taute Anderson 0.02790

4. Tui Pipiwharauroa Anderson

0.02790

5. Rahera Anderson 0.02790

6. Charles Anderson 0.02789


0.03254



(c) Section 47(4) that all consequential amendments are made where necessary.

[28] A copy of this decision is to go to all parties.

_____________ W W Isaac CHIEF JUDGE

DECISION OF CHIEF JUDGE W W ISAACIntroductionDetails of subsequent Orders affecting lands to which application relatesDetails of payments made as a result of the OrderReference to areas of difficulty16 Effect of adoption order

in the mĀori land court of new zealand ......tui pipiwharauroa anderson rahera sadie anderson m m m...

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