The history of wills in New Zealand is bound to the social history of both New Zealand and England. Before colonial settlement Maori (indigenous people of New Zealand) relied on the oral tradition of ohaki for the settlement of property on selected heirs. Ohaki means final instructions given before death and may refer to a deathbed speech. These instructions had a moral and legal force before the replacement of ohaki by English testamentary procedures at the end of the nineteenth century. Waikato University Law lecturer Susan Tappenden looks at the difference in two approaches.
Important Maori with significant property to leave would publish their wishes orally in front of selected auditors who would act as witnesses. The instructions would include arrangements for the disposition of land, personal property, wives and slaves and the marriage of children. If the speaker were a chief then part of the ohaki might refer to succession to the authority and mana (authority or power) of the chief. There had to be sufficient witnesses to attest to the validity of the ohaki. Ohaki was respected as binding on the community. Gradually the practice of ohaki was replaced by the European practice of making a will. I suggest that the rigidity of the old colonial laws took no heed of the Maori custom of ohaki and the reform of the 1837 Wills Act should have included an option for Maori to return to their customary practice.
For pre-colonial Maori there were established practices associated with the distribution of the deceased’s property. As with all cultures, control of land was important and customary rights were held by those who had title to the land by occupation. Every right to land was required to be kept alive by occupation or by some act symbolizing continued use, for example ahi ka – the long-burning fire. At the same time as Maori are believed to have settled New Zealand, around 1280, the English system of land inheritance was also influenced by custom and occupation.
It is interesting to compare Maori and English cultures as at the end of the 13th century as that time marked the beginning of the Land Tenure system that was brought to New Zealand by the English settlers.
Study Law at one of the best Law Schools.
Waikato Faculty of Law is ranked among the top 150 law schools in the world. Waikato Faculty of Law is dedicated to providing its students with the highest quality, student-focused practical legal education. Study Bachelor of Laws (LLB) or Master of Laws (LLM).
Find out more about how to apply.
Tenure of land in England in 1280 signified the status of the holder of the land in the English social system and his relationship to the person who granted him tenure. The incoming king reallocated land by taking it from English barons who had opposed his accession to the throne. He rewarded his faithful followers among the nobility by granting them tenure of parcels of land in return for which these tenants in chief owed King William I loyalty and military service. The tenants in chief parceled out the land over which they had dominion in return for loyalty and service of various kinds from their own tenants. The tenant retained his interest in the land as long as he performed the specified services and remained loyal. This was all based on an assumption that all land was within the king’s power to give. The granting and receipt of tenure was more than a contract or commercial bargain – it was a life-long bond, based on mutual trust. The relationship was between the holder of the land and his tenant and the tenant’s link to the land was conditional on his performance of service to his lord.
Although Maori and the English each operated separate systems for the inheritance of land as distinct from chattels, the underlying reasons for this divergence were completely different and represented the dissimilar social structures of each race. For Maori the land was significant to the people who lived on it as a source of food and also identity. The word ‘whenua’ has complementary dual meanings of ‘land, ground or country’ and ‘placenta or afterbirth’. This linguistic link between land and birth reflects the importance of the birthplace to the identity of Maori. In the English law land was associated with the ability to maintain a standard of living rather than identity. For example an ancient measurement of land, a ‘hide’, represents the amount of land that would support one peasant family. The peasant family was the basic unit of labour throughout the middle ages. By the time English succession law came into force in New Zealand the transfer of real property was only possible in writing. Land, therefore, could only be devised by will in writing in contrast with the Maori tradition of ohaki which was oral.
Changes have been made to the modern law of wills in New Zealand. Section 14 of the Wills Act 2007 states that the High Court may declare a will to be valid if it appears to be a will yet does not comply with the requirements that it be signed and witnessed by two people.
There are many examples in cases since 2007 where oral evidence was taken as to the testamentary intentions of the deceased. This was accepted in court and was sufficient proof for the court to declare the wills to represent the true intentions of the disposer. And yet evidence from the mouth of the person himself, as in ohaki, is not acceptable. This does not seem logical or reasonable. Respect for the Maori way of life prior to colonisation should dictate, at the very least, that oral wills should be available for validation under legislation in the same way as s14 validates unsigned and unwitnessed documents. Oral evidence about the true intentions of the testator can be accepted to support a document and that evidence may be reports of things that the testator himself said. Ohaki is just the same – witnesses report what the subject says he wants to happen to his possessions. The differences are that there are many more witnesses available for ohaki to be credible and the words that they are witnessing were spoken nearer to the death of the subject, unlike with a will that may have been executed some years before death.
The stipulation that wills be attested documents was derived from legislation directed towards people living in an environment quite different to the Maori culture. In England the law was developed to serve a society where literacy became the norm and where measures were required to avoid fraud, which was rife. The legislation and case law engendered specific rules for every eventuality leaving no room for judicial discretion. That body of law was superimposed on Maori traditional law. Their oral statement of testamentary disposition, the ohaki, was outlawed as a method of devising possessions at death. However, with the inception of the Wills Act 2007 discretion to hear oral evidence of testamentary intention has been restored. To reinstate the tradition of ohaki would mean simply that the oral evidence heard would be from credible witnesses who received the evidence first hand shortly before the death rather than years after a document was written. To reinstate this customary way of disposing of goods would not be a far reach from the power given to the High Court under s14 of the Wills Act 2007 but it would represent recognition that this aspect of Maori culture has value.
 Te Matapunenga, ed R Benton 2013, VUP, 540
Lecturer at Te Piringa – Faculty of Law, University of Waikato.
Susan has experience in commercial law but mainly lectures in equity and property law and she has a special interest in jurisprudence. Susan’s research interests include property, equity and jurisprudence plus the teaching of skills in the undergraduate programme.
The University of Waikato has steadily developed strength in Maori and Indigenous Law and earned an international reputation for its research in this area. The Faculty of Law hosts the Centre for Maori and Indigenous Governance (MIGC). MIGC is headed by Dr Robert Joseph . The Centre draws together the many strands of Maori and Indigenous research being carried out by our own faculty, across the University of Waikato, and with international collaborators.
Find out more about studying law at Te Piringa – Faculty of Law, University of Waikato, New Zealand.