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
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
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
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