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The Pamphlet Collection of Sir Robert Stout: Volume 67

Succession and Wills

Succession and Wills.

73. In case any Native has died, or shall die, entitled to any

Succession to lands of deceased intestate owner

estate, share, or interest in any Native land, or Titled land, whether held under Native usage or custom, or in severalty, or as tenant in common or joint tenant, without having made any valid disposition thereof by will, the Commissioner, on the application of any Native claiming to be interested therein, shall inquire and ascertain who ought to succeed to such estate, share, or interest in such Native or Titled lands.
74. The Commissioner shall, by notice, to be published as herein-

Hearing of application

before provided, appoint a time and place for the hearing of such application.
75. If, on any such hearing, any document purporting to be a will

Inquiries to be made by Commissioner

is produced, the Commissioner shall, after proof of death, make the inquiries following:—
(a.)Whether at the time of executing such document the devisor was in a fit state, mentally or bodily, to make such will?page 52
(b.)Whether the document was duly attested by two disinterested persons, having no interest directly or indirectly in the real estate thereby intended to be devised?
(c.)Whether the real estate has been devised out of the right line of descent, according to Maori Usage and Custom, and if there are any children, grandchildren, or great-grand-children of the deceased person living?

Will invalid in certain cases

76. After the passing of this Act, no document purporting to he a will or devise of the real estate of any Native shall be valid unless
(a.)Properly attested by two disinterested persons having no interest directly or indirectly in the estate thereby devised, such witnesses to be, where possible, of the European race. (If necessary, the Commissioner may summon the attesting persons to prove the execution of the document.)
(b.)Which devises any real estate out of, or away from the direct lineal descendants (that is to say living children, grand-children, or great-grandchildren) of the devisor, who, according to Maori usage and custom, are the proper persons to succeed to such real estate.
(c.)Where the person, on executing such will, shall be proved to the satisfaction of the Commissioner to have been in an unfit state, mentally or bodily, to understand the purport thereof.
(d.)With the above exceptions, a Native may devise his real estate to any person whomsoever he may deem fit.

Person other than a Native to pay a duty on bequest under will

77. In the case of any devise of real estate to a person other than a Native (as the term Native is defined in the interpretation section hereof) the Commissioner having made the inquiries as hereinbefore directed shall order that the person so found to he entitled under the will shall pay to Her Majesty the Queen a duty of ten pounds per centum of the value of the estate so devised to him or her, and such other stamp duty as may be imposed on any will under the provisions of the Stamp Act for the time being in force within the Colony.

Manner in which decision to be made

78. After making the inquiries hereinbefore required to be made, the Commissioner shall decide thereon.
(a.)In respect of Native Land (where no valid will has been produced), in accordance with Native usage and custom.
(b.)In respect of Titled Land (where no valid will has been produced), in accordance with the law of New Zealand (where it does not conflict with the provisions of this Act), as nearly as it can be reconciled with Native usage and custom.
(c.)In respect of a devise under a will whore not repugnant to the provisions of this Act, to the person or persons entitled to succeed under the will, and in the best manner calculated to give effect thereto.

Commissioner to make Succession Order

79. The Commissioner thereupon shall make an order, in duplicate called a Succession Order, which shall be signed by him and sealed in favour of the person or persons found to be entitled to succeed to such Native Land or Titled land, and shall set forth therein the death and if proved the date of the death of the owner, a description of the land and the name and place of abode, and occupation of the person or persons entitled to succeed. If any person found to be entitled to succeed to any share or interest shall be a minor or other person under disability, the Commissioner shall order the estate of such minor or other person under disability to vest in Trustees then to be appointed. The age of such minor, as nearly as it can be ascertained, shall be entered in such Succession Order. A page 53 Succession Order shall be given to each of the persons mentioned therein as Successors, and the duplicate thereof shall be filed of record in the office of the Chief Commissioner, and a copy thereof shall be inscribed in the District and General Register of Titles.
80. The Succession Order so made shall have the same force and

Effect of Succession Order

effect in favour of the successor as the instrument (if any) under which the deceased Native owner was entitled had in his favour at the time of his decease, and as regards land hold under Crown Grant shall be entitled to registration under the Land Transfer Act, or the Deeds Registration Act, in like manner as a valid will.
81. Whensoever any Native claims to succeed to the estate, share,

Providing for succession in cases of joint tenancy

or interest of any deceased person (which is not the subject of any valid fill), who shall have died possessed of any estate hold under "The East Coast Native Land Act, 1868," and "The East Coast District Land Titles Validation Act, 1871," or any certificate or Crown Grant made under the authority thereof or any other Act referring to Native lands in which the estate created thereby is one of "joint tenancy" and not of "tenancy in common." For the purpose of this Act and notwithstanding any Act now in force, or the making of any such certificate or Crown Grant under the authority thereof, all Native owners of such lands (where the fee simple thereof has not been disposed of by conveyance) shall, after the passing of this Act, be, and be doomed to be, "tenants in common," and shall be entitled to succeed to any real estate as such; and a Succession Order shall be issued to such person or persons as hereinbefore provided; and such order shall s ow on the face thereof that it was made for land the subject of a title in "joint tenancy."
82. If any person shall feel himself aggrieved by any decision

Re-hearing of Succession Claims

of a Commissioner in any matter of succession, he may apply to the Chief Commissioner for a rehearing thereof, which shall" be dealt with in the manner prescribed herein in section 24 in cases of incomplete title. A decision on a rehearing shall be final and conclusive.