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Lecture 17

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Department
Law
Course
LAWS101
Professor
Donna Buckingham
Semester
Fall

Description
02/05 Lecture 17: Statutory interpretation and tikanga Maori FAMILY PROTECTION ACT 1955 3. Persons entitled to claim under Act- (1) an applicant for provision out of the estate of any deceased person may be made under this act or on behalf of all or any of the following persons: (b) The children of the deceased Family protection act can balance out inequity by enquiring if the beneficiaries are receiving what they require (house, money etc.). If they find that the testator has not filled their moral responsibilities, the court will intervene and re-write the will. Can a customarily adopted child, be a claimant, as not a legally adopted child but a “whangai”. The estate will only be reviewed if Sam can be proved a „child of the deceased‟. The Judge reluctantly decided that it was not possible. It was taken to the court of appeal. The following paragraphs have been worked through in this lecture in order to give the basic material with which to structure an essay on this topic. Paragraph 12: begin with the statutory words, give them natural meaning as they appear in context, taking into account their purpose- the approach we are used to. Judge starts with a narrow view of what the natural meaning of the child might be.  Looks at it in context in section 3: concludes that “children of the deceased” refers to natural children.  LONG TITLE: an Act to consolidate and amend certain enactments of the General Assembly relating to claims for maintenance and support out of the estates of deceased persons. BUT: section 3 does not even include all those with a moral right to claim, and not all whangai are tamaiti awhi (customarily „adopted‟, inference of a blood tie) as opposed to being „fostered‟ on a long term basis.  Legislative History: ability to claim.  Testators Family Maintenance Act 1900: restricted at first to spouse and offspring. Only if an illegitimate child had been acknowledged by a parent during their lifetime would they be able to claim anything under this act, after their death. Grandchildren were the next group allowed to claim, as well as adopted grand children.  Family Protection Act 1995: recognition of “mixed” families- step children. 2002: de facto partners, 2005: civil union partners able to claim.  We see evidence here, of a gradual acceptance of different groups being acknowledged, and the class of people able to claim growing larger. The Judge however makes the apt observation that it is parliamentary not judiciary action, in all of these cases, that has resulted in the class (of people that may claim under these statutes) being widened.  Other Statutory Definitions:  Matrimonial Property Act 1976/ Property (relationships) Act 1976 : Child of the marriage (a) means any child of both spouses; and (b) includes any other child (whether or not a child of either spouse) who was a member of the family of the spouses- (i) at the time when they ceased living together; (ii) at the time immediately before an application under this act, if at that time they had not ceased to live together; or (iii) at the date of the death of one of the spouses… wide concept, for the purposes of property and support. “Child” of a marriage but not of a person.  Family Proceedings Act 1980: child of the marriage: (i) means a child of the husband and wife; and (ii) includes, in relation to any proceedings under this act, a child (whether or not a child of the husband or wife) who was a member of the family of the husband and wife at the time when the husband and wife ceased to live together… run our current law of dissolution of marriage.  Can, as an analogy to these statutes, extend child to inclu
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