43 Takitimu MB 31
IN THE MĀORI LAND COURT OF NEW ZEALAND
TĀKITIMU DISTRICT
A20130009438
Hearings:
UNDER
Sections 113 and 118 of Te Ture Whenua
Māori Act 1993
IN THE MATTER OF
The Estate of Te Aokatoa Wirihana also
known as Te Aokatoa Kingi Wirihana or Te
Aokatoa Kingi Wiritana or Te Ao Wirihana or
Joe Wilson
BETWEEN
FRANCIS MELANIE TRACY WALKER
Applicant
AND
PRINCESS TONIHI
Interested party
30 Tākitimu MB 263-271 dated 7 February 2014
32 Tākitimu MB 14-18 dated 7 May 2014
(Heard at Hastings)
Appearances: Francis Walker in person
Princess Tonihi in person
Judgment:
31 August 2015
RESERVED JUDGMENT OF JUDGE L R HARVEY
Introduction
[1]
Te Aokatoa Wirihana died on 2 October 1993 at Hastings. He was never married
and had no children. He did not leave a will and there has been no grant of administration.
Succession orders were issued on 3 August 1995 in favour of his only brother Chrysler Kīngi
Busby Wirihana.1 At that hearing Chrysler Wirihana confirmed that he and the deceased
were half brothers, having the same father. Mr Wirihana also gave evidence that the
deceased was never married, had no children including whāngai or by legal adoption.
1
141 Napier MB 165 (141 NA 165)
43 Takitimu MB 32
[2]
Further orders issued on 7 November 1995 for additional interests held in the Aotea
district to be vested solely in Mr Wirihana.2
[3]
Chrysler Wirihana died on 18 August 2009 leaving no will and no children.
Succession to his estate was dealt with on 17 June 2010 by Chief Judge Isaac. 3 Ms Tonihi
gave evidence at the hearing that she was one of six siblings of Chrysler Wirihana. Ms
Tonihi stated that Chrysler had two half brothers, Te Aokatoa Wirihana and Clarence Hawea
and four whāngai sisters. At the hearing Ms Tonihi further explained that the whāngai
siblings, including her, are whāngai daughters of Te Aokatoa Wirihana.
Chief Judge Isaac discussed with Ms Tonihi the legalities of succession to Māori
[4]
land interests and the inability of whāngai siblings, under Te Ture Whenua Māori Act 1993,
to succeed to the interests of their siblings. It was accepted that Clarence should succeed to
the interests derived from Chrysler’s maternal line. It was further accepted that the interests
Chrysler received from Te Aokatoa Wirihana should be re-vested in Te Aokatoa Wirihana
and a further application for succession be filed by Ms Tonihi and her whāngai sisters to
succeed to Te Aokatoa Wirihana as his whāngai. Orders were made accordingly.4 No
further application was received by Ms Tonihi.
Francis Walker now claims that the deceased had no children and no whāngai and
[5]
that, as the deceased’s only brother is also deceased without children, the interests should go
back to his mother’s whānau for succession. That said, Princess Tonihi, also known as
Princess Wilson, claims that she and her three sisters are whāngai of the deceased and
should be entitled to succeed.
Issues
[6]
The issues for determination are:
(a)
Is Princess Tonihi a whāngai of Te Aokatoa Wirihana?
(b)
Who is entitled to succeed to Te Aokatoa Wirihana?
2
3
4
142 Napier MB 63 (142 NA 63)
3 Tākitimu MB 44 (3 TKT 44)
Ibid
43 Takitimu MB 33
Procedural history
This application was initially heard on 7 February 2014.5 Questions were raised at
[7]
the hearing, concerning the matter of whether the deceased had whāngai children and who
should succeed. At the conclusion of the hearing, I adjourned the proceedings to allow the
parties an opportunity to gather witnesses in support and make any further written
submissions. I also directed that a report be prepared based on evidence from the Court
record.6
[8]
A report was completed by the case manager on 15 April 2014 and circulated to the
parties as directed. A final hearing was then held on 7 May 2014. 7 As previously mentioned
at the conclusion of the hearing I reserved my decision.
The case manager’s report
[9]
As foreshadowed I directed the case manager to undertake a review of the Court
record in relation to Te Aokatoa Wirihana, including the original succession application, the
application for succession to the further interests of Te Aokatoa Wirihana, and the
application for succession to Chrysler Wirihana. That report was completed on 15 April
2014.
[10]
The report shows that the original succession application to Te Aokatoa Wirihana
was filed by Chrysler Wirihana, who stated that the deceased was never married, had no
biological children, and named himself as the deceased’s only sibling. It was also noted that
the application originally listed Princess Tonihi, Chrystine Kahaki and Tania Kahaki as
whāngai of Te Aokatoa Wirihana however there names appear to have been subsequently
crossed out.
[11]
The application file also contains two file notes, which record that a whāngai
daughter of the deceased made enquiries with the Court and provided information regarding
Te Aokatoa’s estate. The file notes did not identify who the whāngai daughter was. In any
event the minutes of the subsequent hearing record that Chrysler confirmed that the deceased
5
6
7
30 Tākitimu MB 263 (30 TKT 263)
Ibid
32 Tākitimu MB 14 (32 TKT 14)
43 Takitimu MB 34
had no whāngai and, as there were no objections, an order was made in favour of Chrysler
solely.8
[12]
Regarding succession to Chrysler Wirihana, the report records that the application
was made by Ms Tonihi who stated that Chrysler had six siblings. The deceased, Te Aokatoa
Wirihana, is noted as a half brother with the same father, and Clarence Hawea is shown as a
half brother with the same mother. There are also four whāngai sisters listed, Princess
Tonihi, Tania Te Whaiti, Chrystine Kahaki and Maora Hawea. The application further stated
that Chrysler was brought up by Te Aokatoa Wirihana.
[13]
In addition, the report also makes reference to the Court hearing held on 17 June
2010 and the discussion between Ms Tonihi and Chief Judge Isaac regarding the ability of
Ms Tonihi to succeed as a whāngai sister to Chrysler. The minutes record that the shares
derived from Te Aokatoa Wirihana were to be re-vested in Te Aokatoa following which Ms
Tonihi could then apply for succession to those interests.
Francis Walker’s submissions
[14]
Ms Walker submits that she is a grand niece of the deceased, as her grandfather
Tawhati Wirihana, and the deceased’s mother Ngawai Wirihana were siblings. She also says
that her grandfather was a first cousin of the deceased’s father, Kingi Kingi Wirihana.
[15]
Ms Walker further submits that Te Aokatoa Wirihana is the only child of the union of
Ngawai Wirihana and Kingi Kingi Wirihana. She claims that when Te Aokatoa Wirihana
lived with his father and step mother Maude Wilson, he had whāngai sisters, being Princess,
Chrystine and Tania.
[16]
According to Ms Walker, she never knew Princess, Chrystine and Tania to be
whāngai daughters of Te Aokatoa Wirihana, despite her having regular contact with him.
She contends that if Te Aokatoa Wirihana did consider Ms Tonihi or others to be his whāngai
daughters then he would have mentioned them as such, but she claims that he never did.
[17]
In addition, Ms Walker states that her mother always maintained that Te Aokatoa
Wirihana had no children.
8
The Report also notes the further succession orders made at 142 Napier MB 63 (142 NA 63) on
7 November 1995 in favour of Mr Wirihana.
43 Takitimu MB 35
Princess Tonihi’s submissions
[18]
Ms Tonihi submits that she is a whāngai daughter of Te Aokatoa Wirihana and was
gifted to him by her natural parents at birth. She claims that Te Aokatoa lived with his step
mother Maude Wilson and that both Te Aokatoa and Maude brought her up.
[19]
Ms Tonihi acknowledges that Maude was like a mother figure to her, but despite
this, maintains that she was in fact a whāngai of Te Aokatoa. As such, she argues that she
should be recognised as a whāngai and be entitled to succeed to his estate.
[20]
In support, Ms Tonihi presented copies of her school enrolment records, which refer
to her as Princess Josephine Wilson and state that she was enrolled by Te Aokatoa and was
in his care along with and Maude during her school years. Importantly, her record of
admission from the Mayfair School Board of Trustees records Te Aokatoa as her “father”.
Other submissions
[21]
Te Rina Hawea attended the final hearing and gave evidence of her experience with
the whānau. She claims that, to her knowledge, Ms Tonihi was a whāngai of Maude rather
than Te Aokatoa Wirihana. Ms Hawea says that there were a number of children in the
household, including herself, for which Te Aokatoa was a father figure. Ms Hawea submits
that if Ms Tonihi is a whāngai then all the children raised in the household should be
considered whāngai.
[22]
Libya Walker gave evidence at the hearing.
He is the father of Francis Walker.
According to Mr Walker he knew Te Aokatoa and Ms Tonihi and, although he did not know
the relationship in the household, he notes that Ms Tonihi’s surname was not Wirihana and
that if the land interests were vested in her they would be going outside of the whakapapa
line and outside of the hapū.
[23]
Betty Hawea, a niece of the deceased’s step mother Maude Wilson, gave evidence
that Ms Tonihi was a whāngai of Maude and Te Aokatoa. She claims that Ms Tonihi came
into the household when Te Aokatoa and his brother Chrysler were there, and that in her
recollection Ms Tonihi was just always there along with other children too.
43 Takitimu MB 36
The Law
[24]
Te Aokatoa Wirihana did not leave a will and accordingly the intestacy provisions in
s 109 of the Act must apply to his estate.
[25]
Section 109 provides that those primarily entitled to succeed, upon intestacy, are the
children of the deceased. Where there are no children, siblings of the deceased are entitled,
and failing that the successors are to be ascertained by reference to the derivation of the
interests concerned to the persons nearest in the chain of title.
[26]
Section 115 of the Act is also relevant to this application given that the issue of
whangai. Pursuant to s 155 the Court can make provision for any whāngai as if they were a
child or children of the deceased. Section 115 of Act provides:
115
Court may make provision for whāngai
(1)
In the exercise of its powers under this Part in respect of any estate, the
court may determine whether a person is or is not to be recognised for the
purposes of this Part as having been a whāngai of the deceased owner.
(2)
Where, in any such case, the court determines that a person is to be
recognised for the purposes of this Part as having been a whāngai of the
deceased owner, it may make either or both of the following orders:
(3)
[27]
(a)
an order that the whāngai shall be entitled to succeed to any
beneficial interest in any Maori freehold land belonging to the
estate to the same extent, or to any specified lesser extent, as that
person would have been so entitled if that person had been the
child of the deceased owner:
(b)
an order that the whāngai shall not be entitled to succeed, or shall
be entitled to succeed only to a specified lesser extent, to any
beneficial interest in Maori freehold land to, or than that, which
that person would otherwise be entitled to succeed on the death of
that person’s parents or either of them.
Every order under subsection (2) shall have effect notwithstanding
anything in section 19 of the Adoption Act 1955.
In the recent decision of Pomare – Estate of Peter Pomare, the Court discussed the
leading authorities regarding whāngai.9 In that decision it was noted that s 115 of the Act
enables the Court to make two determinations. Firstly, whether a person is a whāngai of a
deceased, and secondly, to what extent, if any, the whāngai is entitled to succeed to the
Māori land interests of the deceased. In determining the extent to which a whāngai might
9
Pomare – Estate of Peter Pomare (2015) 103 Taitokerau MB 95 (103 TTK 95)
43 Takitimu MB 37
receive land interests, the Court invariably examines the whakapapa or bloodline
relationship to the whāngai parent. However, the more difficult question can be whether
there was in fact a whāngai relationship in the sense of an adoption in “accordance with
tikanga Māori”, and the Court will consider the relevant tikanga along with the particular
nature of the whāngai relationship in question.
[28]
I adopt the reasoning set out in that decision.
Is Ms Tonihi a whangai of Te Aokatoa Wirihana?
[29]
To determine whether Ms Tonihi (and others) are whangai for the purposes of s 115
of the Act I must first consider whether they have been “adopted in accordance with tikanga
Māori”, or whether their relationship was something less than a customary adoption such as
a temporary fostering arrangement.10
In Hohua – Estate of Tangi Biddle the Māori
Appellate Court observed that in relation to this Court’s functions under s 115:11
The word whāngai is defined in section 3/93 which provides “whangai means a
person adopted in accordance with tikanga Maori.” Tikanga Maori in the same
section of Te Ture Whenua Maori Act 1993 means “Maori customary values and
practices.” To establish what the relevant Maori customary values and practices
relating to an application under section 115/93 may be, the Maori Land Court hears
a range of evidential material including inter alia whakapapa to determine whether a
blood relationship exists, the length of the relationship between the whangai and the
adopting parents, whether there has been an ohaki, the customary values and
practices of the iwi or the hapu associated with the land in question and whether
those values and practices of the iwi or the hapu associated with the land in question
and whether those values and practices permit a whāngai with our without a blood
relationship to their matua whangai to take interests in land. (See for example In Re
Succession to George Tukua 116 Otorohanga MB 81). In the end, however, it is a
judgment call to be made by the judge after considering all the evidence and having
regard to the Preamble, sections 2, 17 and 115/93.
Even if a person is a whāngai, the Court still has a discretion under section 115(2) as
to the extent of the interest it may award, if any. This is a matter for consideration by
the Court and could extent to the award of a life interest in appropriate
circumstances.
[30]
It is not disputed that Ms Tonihi and Te Aokatoa resided in the same household as Te
Aokatoa nor is it disputed that Te Aokatoa signed Ms Tonihi’s enrolment forms as her father.
The issue is whether, despite the fact that they resided in the same household, their
relationship was one of whāngai parent and child.
10
11
Ibid
Hohua – Estate of Tangi Biddle (2001) 10 Waiariki Appellate Court MB 43 (10 APRO 43)
43 Takitimu MB 38
[31]
Ms Tonihi maintains that she is the whāngai daughter of Te Aokatoa. She insists that
she was not a whāngai of Maude rather she says she was gifted to Te Aokatoa only.
[32]
It is important to also consider the evidence of how the whāngai is treated by the
wider whānau and the nature of the continuing parent-whāngai relationship.12 According to
the applicant however it was never understood that the relationship between Te Aokatoa and
Ms Tonihi to be that of father and daughter. She says she never heard the deceased refer to
Ms Tonihi as his daughter and argues that Ms Tonihi was raised by Maude as a sister to Te
Aokatoa Wirihana. This is consistent with other evidence as to the relationship between Ms
Tonihi and Te Aokatoa’s brother, Chrysler referred to below. It also appeared that the
general impression of the wider whānau was that Ms Tonihi was either a whāngai of Maude
or a whāngai of both Te Aokatoa and Maude. There does not appear to be any definitive
statements in the evidence that Ms Tonihi was a whāngai of Te Aokatoa only.
[33]
I also have regard to the fact that Ms Tonihi and others were initially listed as
children of Te Aokatoa in the succession application filed by Chrysler. It is unclear why
their names were subsequently crossed out nevertheless in any event it demonstrates that
there may have been some confusion as to the nature of the relationship between Te Aokatoa
and Ms Tonihi.
[34]
At the hearing held regarding succession to Chrysler Wirihana, Ms Tonihi purported
to succeed to Chrysler on the basis that she was a whāngai sister of Chrysler. This would
suggest that the relationship was somewhat different to that now being claimed. That said, it
is not uncommon for elder siblings, whāngai or otherwise, to be treated as a parent,
especially where there is a significant age gap. It was not unusual where there were very
large families for siblings with an age gap of over 20 years to be regarded as parent and child
especially where the care-giving parent has died leaving many children of varying ages.
[35]
The minutes record that Chief Judge Isaac queried the relationship between Ms
Tonihi and Chrysler to which Ms Tonihi explained that the whāngai siblings, including her,
were whāngai daughters of Te Aokatoa Wirihana. I acknowledge that whānau dynamics can
be complicated and do not always fit easily within traditional concepts concerning family
12
See Hohua – Estate of Tangi Biddle (2001) 10 Waiariki Appellate MB 43 (10 APRO 43); Tukua
– Estate of George or Hori Kiwa Tukua (2000) 116 Otorohanga MB 81 (116 OT 81); Ropiha v
Campbell – Te Mauongarongo Wiremu (2008) 184 Gisborne MB 294 (184 GIS 294); Milner v
Milner – Warihi Te Keu Faenza Milner (2008) 83 Ruatoria MB 108 (83 RUA 108); Bennett –
Esate of Ronald Clifford Bennett (2014) 101 Waiariki MB 290 (101 WAR 290); Kake – Kiriwai
Ihaia (Ruka) (2007) 118 Whangarei MB 256 (118 WH 256).
43 Takitimu MB 39
relationships. However in the absence of further evidence regarding the nature of her
ongoing relationship with the Te Aokatoa or the length of time that Ms Tonihi lived with
him, I simply cannot say with certainty that Ms Tonihi is a whāngai of Te Aokatoa Wirihana
let alone one who is entitled to succeed.
[36]
There has been no evidence presented to the Court, of a blood relationship between
Ms Tonihi and Te Aokatoa. The onus is on Ms Tonihi to provide sufficient evidence of a
whāngai relationship. 13 To date there are only her own assertions on the Court file claiming
such status. At this stage, having regard to all the circumstances, I find that there is
insufficient evidence for a conclusion that Ms Tonihi is a whāngai of Te Aokatoa and is
entitled to succeed.
[37]
Ms Tonihi has claimed that she is one of four whāngai daughters of Te Aokatoa yet
again there has been no evidence detailing the nature of the deceased’s relationship with
these claimed whāngai or other evidence of whakapapa connections. Certainly those parties
have not appeared or provided their views in relation to this application. If they did then that
might assist Ms Tonihi with her claim to whāngai status. I also acknowledge that it is not
uncommon for whāngai siblings, like their blood counterparts, to sometimes lose contact
over time, especially when the whāngai parent has died. In any event, based on the evidence
currently before the Court, I am unable to find that they are whangai of Te Aokatoa.
[38]
Having made that finding it is not necessary for me to consider per s 115(2) the
extent to which Ms Tonihi (and the other claimed whāngai) should succeed to the interests of
Te Aokatoa.
[39]
As foreshadowed, I confirm that should further evidence become available in the
future, in favour of Ms Tonihi and others being whāngai of the deceased, a s 45 application
can be filed with the Court.
Who is entitled to succeed to Te Aokatoa Wirihana?
[40]
The applicant claims that she is entitled to succeed as the next of kin to the interests
of Te Aokatoa Wirihana. Te Aokatoa holds various land interests derived from his mother
Ngawai Wirihana. The Court’s records confirm that Ngawai Wirihana only had one child.14
13
14
Tukua – Estate of George or Hori Kiwa Tukua (2000) 116 Otorohanga MB 81 (116 OT 81)
68 Otaki MB 217 (68 OTI 217)
43 Takitimu MB 40
On that basis the shares should therefore revert to the siblings of Ngawai Wirihana. Those
siblings are recorded as:15
[41]
1.
Hera Hori Wirihana
2.
Urikore Hori Wirihana
3.
Ngauru Hori Wirihana
4.
Tiari Hori Wirihana
5.
Henare Hori Wirihana
6.
Te Hapai Hori Wirihana
7.
Tawhati Hori Wirihana
My conclusion is that those persons listed above are entitled to succeed to the
interests held by Te Aokatoa Wirihana, as derived from Ngawai Wirihana, with substitution
of issue where appropriate.
[42]
A number of interests held by Te Aokatoa were received by him from Hineiti
Rirerire pursuant to her will. Succession to Hineiti occurred according to the terms of her
will.16 Accordingly, the interests derived from Hineiti should revert to her name with further
succession to the shares to be based upon those entitled to succeed to Hineiti upon intestacy.
Decision
[43]
The application for succession to the interests of Te Aokatoa Wirihana is granted in
favour of Hera Hori Wirihana, Urikore Hori Wirihana, Ngauru Hori Wirihana, Tiari Hori
Wirihana, Henare Hori Wirihana, Te Hapai Hori Wirihana and Tawhati Hori Wirihana and
their successors.
[44]
There will be no order as to costs.
Pronounced at 4pm in Rotorua on Monday this 31st day of August 2015
L R Harvey
JUDGE
15
16
61 Ōtaki MB 107 (61 OTI 107) see also 85 Ōtaki MB 274 (85 OTI 274)
28 Tokaanu MB 344 (28 ATK 344) see also 5 Tokaanu Succession MB 37 (5 SNTK 37) and 1
Tokaanu Succession MB 100 (1 SNTK 100).