In re Estate of Tanu Raina [1984] CKHC 5; HC 193.1983 (17 August 1984)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(LAND DIVISION)
No. 193/83

IN THE MATTER OF AKAPUO SECTION 41A TAKITUINU

AND

IN THE MATTER OF an application to
succeed to TANU RAINA DECEASED

Counsel: Mr Tylor for the family of Mareta
Mr Clarke for the families of Tanuiti and Rangi

Judgment delivered 17th August 1984

JUDGMENT

This is an application for succession - simple in form but complex of application. I say simple because one would have thought that where a person has taken the time and trouble and incurred certain expenses to complete all legalities associated with the adoption if three children, then on his death those three children would be expected to share equally their adopted father's estate. It is now suggested with good authority by Mr Clarke, that that is not necessarily the position.

The agreed facts are as follows:

(a) The Deceased Tanu Raina legally adopted three children, namely:

(i) Mareta (f) - Registration No. 122;

(ii) Tanuiti (m) - Registration No. 123;

(iii) Rangi (f) - Registration No. 124;

(b) Tanuiti and Rangi were related by blood to Tanu Raina;

(c) Mareta was not related by blood to Tanu Raina.

It is this distinction which Mr Clarke contends on behalf of his clients, that excludes Mareta and her successors from succeeding to the land.

Now both Mr Tylor and Mr Clarke rely on the Judgement in the Emma Moetaua case delivered by Chief Judge Morgan on the 29th May 1968. I propose therefore to consider the principles enunciated in that Judgement and if applicable to use some or all of them as a base from which to relate to the facts of the present application.

Emma Moetaua while legally adopted was not related by blood to Tuokura Maeva who had adopted her. It was claimed by Makeanui Ariki who opposed Emma's application for succession that she was not related by blood to the deceased and therefore under Maori custom had no right to succeed. Chief Judge Morgan made the following observations of general application which are quoted in full: Pages 156 and 157

"The rights of an adopted child in respect of succession to the lands of its foster parent have always been somewhat confusing.

It is clear that an adopted child, excepting under circumstances which do not apply in this case, has no right unless an order of adoption is made by the Court (Section 456 Cook Islands Act, 1915).

If such an order has been made (in this case two orders have been made) that order has only the same operation and effect as is attributed to it by Native Custom. (Section 465 Cook Islands Act, 1915). As the adoption order, itself, does not confer upon the adopted child an unqualified right to succeed, the Court is required to determine the issue in accordance with Native Custom. Difficulty arises from the fact that different families, at first sight, appear to adhere to different custom but this is due to the fact that there are degrees of recognition of an adoption. The taking of a child under Native Custom or the making of a Court Order of Adoption are only the first steps in what might or might not lead to a final recognition by the foster parent and his near family of a complete adoption. The need for recognition by the near family can be better appreciated if it is remembered that the adopted child will, in the future, probably want to use some or all of the lands of his foster parent, i.e. family lands in which the foster parent owns a share but has no specific portion. Reference to recognition is also made in M.B. 11/305. Between the first steps and the final, complete adoption there are degrees which govern succession to the foster parents' estate. An adopted child may return to its own parents or it may live partly with its foster parents and partly with its natural parents. In such cases the adoption never becomes complete but, particularly in the second instance, the foster parent and his family may, and usually do, set aside certain lands to which the child may succeed, but the remaining lands go to the next of kin by blood. The lack of finality of an adoption order is recognised by Section 464 Cook Islands Act, 1915 under which an adoption may, at any time, upon application being made to the Court, be annulled on any ground which the Court thinks sufficient."

and further: at Pages 157 and 158

"Prior to the Cook Islands Act 1915 there appears to have been no specific legislation dealing with the rights of succession by adopted children and since that time the Land Court itself has not been consistent in its interpretation of the rights of an adopted child. Some references to Court decisions are given in Minute Book 27 page 76 (and there are many others) and an examination of these will show that in some cases the Court has accepted an Order of Adoption as sufficient grounds for granting succession in favour of an adopted child notwithstanding strong objection from the next of kin of the deceased. Perhaps the Judge overlooked or was not aware of the provisions of Section 465. In other cases the Court has held, and has had evidence to support its decision, that an adopted child, not related by blood to its foster parent, could receive no more than a life interest. These findings represent the two extremes of custom pertaining to succession by adopted children. The Appellate Court recognised that an adopted child, having no blood relationship to its foster parent, might, nevertheless, receive more than a life interest in the lands of its foster parent, when it said (A.M.B. 2/393)

".....We do think, however, that it would be in accordance with Native Custom for the family of the foster parent to set aside lands, in addition to those allotted to the adopted child at the time of the adoption, at a later date either during the lifetime or after the death of the foster parent, for the benefit of the adopted child and his descendants. The persons who would have the right to set aside such lands would be those entitled to succeed if no adoption had taken place."

In spite of the above partial clarification it still remains for evidence to show what lands, if any, the adopted child will take and that evidence will, almost certainly, have to come from the next of kin of the foster parent. The old custom of a ceremonial feast to mark an adoption is now a thing of the past and this Court is not aware of the manner by which an adopted child, not of the blood, is formally admitted to the family as recounted by Mr Moss."

and finally, at pages 161 and 162

"The Court is aware that, on numerous occasions, direct evidence has been given to the effect that adopted children, not of the blood, can receive no more than a life interest in lands but upon examination of the lists of owners of many lands it is found that such adopted children or their descendants have frequently been entered as owners without restriction. The Court did not do this of its own volition but accepted lists of owners submitted by the families or their conductors. It is also true that adopted children, not of the blood, have held Ariki and other titles and that their descendants have continued to hold those titles and some of the family lands. In the circumstances the Court cannot accept, as a statement of the full custom, the bare claim that they can receive no more than a life interest."

It is interesting that both Counsel rely on this one judgment to support their opposing views as to entitlement, based on adoption. Counsel have submitted, and I believe correctly, that the fundamental premise enunciated by the Chief Judge was as follows:

"The taking of a child under native custom or the making of a Court order of adoption are only the first steps in what might or might not lead to a final recognition by the foster parent and his near family of a complete adoption."

Mr Clarke submits that in this instance final recognition has not been achieved. Mr Tylor says it has. I propose therefore to now consider the facts presented by each party to these proceedings and then make an evaluation of recognition or non recognition.

Mr Tylor's submissions may be summarised as follows:

1. In M.B. 13/264 the following minutes are recorded:

"16th August 1940 Native Land Court - continues

Appln succn:

357 re TANU decd

Land Tikioki 47A

Mareta a Ranu Raina applicant sworn:

Deceased died a long time ago - and did not leave issue - left adopted children. I am his adopted daughter registered as No. 122 (12/11/1917). There are also two other adoptions:-

Tanuiti m.a. Regd No. 123 12/11/1917

Atimata f.a. (No record found)

Rangi f.a. (Regd No. 124)

Objectors: none

Succession Order in favour of:

1. Mareta a Tanu Raina f.a.

2. Tanuiti m.a.

3. Rangi f.a.

equally"

Mr Tylor says that this order made in 1940 confirms, because there was no objection, an acceptance by Tanu Raina's family of equality between the three adopted children. Since Tanu Raina died in 1929 aged 50, this is an acknowledgement by the family of acceptance.

2. While acknowledging his responsibility to satisfy the standards outlined in the Moetaua Judgement, Mr Tylor claimed that recognition by the foster parent and the near family must relate only to the lifetime of Mareta. Put another way, descendants of Tanuiti and Rangi who did not know Mareta while alive cannot now object in 1984 when she died back in 1967. Thus he submits that evidence of rejection or limitation must relate to facts prior to 1967, the date of death of Mareta.

3. In M.B. 26/189 the following minutes are recorded:

"14th Dec. 1964

5507 Taikura Sec.6 ^B Takitumu Tanu Raina, Decd

Mareta Tanu sworn Decd died 15th Oct 1929. Left no issue but adopted me (Reg. No 122), Tanuiti (Reg 123) and Rangi (Reg 124). I am not related by blood but the other two are. I ask for order in favour of the three adopted children.

Objectors challenged - none.

Ngapokatera, Tutai Aiteina, Metua Maitoe, Tuaau Enoka present and agree. Will not agree to a life interest only for Mareta.

Succession Order in favour of

1. Mareta Tanu f.a.

2. Tanuiti Tanu m.a.

3. Rangi Tanu f.a.

Equally"

Mr Tylor relies on this decision in 1964 as evidence of combined acceptance by the family of equality between the three adopted children. He goes further and says that when the family say in Court they "will not agree to a life interest only for Mareta" but want her to share equally then this is the clearest indication possible of an acceptance by the family of an adopted child and in this case the equality of the three adopted children. He does point out however that since Mareta's death in 1967 the family opposing this present application have somehow removed Mareta from the Title to this land. He advises that an application is to be filed to try and correct this position.

4. There was no objection to the original adoption application. He claims it is not uncommon for an adoption to be opposed.

5. In M.B. 15/35 the following minutes are recorded:

"2nd Nov. 1942		Native Land Court
Present:	H.J. Morgan, Commissioner D. Metuarau, Interp.

984 Akapuao 42 Succn to Tanu Raina deceased

Decd died 15th Oct 1929, he was my uncle

Aiteinga Raina sworn

Tanu a Pa died without issue and we have had a meeting of the family. We have decided that Tanu Daringa should get Tanu a Pa's interest in this block. Tanu's sister Atinata will go in with him. They were both adopted by the deceased. Tanuiti's registered adoption by Tanu Raina No. 123. Atinata's adoption is registered under name of Rangi No 124. Ask for succession in their favour.

Succession Order in favour of

Tanuiti m.a.

Rangi alias Atinata f.a.

equally"

Mr Tylor suggests that the securing of a succession order in the circumstances evidenced by the minutes indicates fraud. I cannot agree with this submission as the record can just as easily indicate that Mareta consented to the arrangement by not objecting to it. In any case from the date of the order in 1942 till her death in 1967 she certainly did not object to that order and can therefore reasonably be presumed to have consented to it. It was an order secured by "a meeting of the family" and I can see no fraud in that.

6. In M.B. 26/48 the following minutes are recorded:

"Part Page 48 Tutai Aiteina - Tanu and Atinata-

(adopted children of Tanu) are children of Ngapokatara.

They take Tanu's share.

Succession order vesting the interest of Taina in

Vaimaanga Sec 3 in

1. Tanuiti a Tanu m.a. 1/16

2. Atinata a Tanu f.a. 1/16

(and 39 other successors)."

Mr Tylor asks this Court to accept that because Mareta is not mentioned or included in this order therefore she has been unfairly excluded. That may be so but I have heard no evidence to support it. The record can just as easily mean that Mareta is not referred to because she agreed to her exclusion from that particular Block. Unless there is clear evidence of this alleged unfairness then I hold that claim is unsupported and cannot be sustained.

I turn now to consider the submissions presented by Mr Clarke.

1. He conceded that "it is quite clear that the custom permits succession by a non blood adopted child in all manner of degree from life interest to freehold interest in one land, several lands and all lands."

2. He accepted that succession by Mareta agreed to by the family in the 6B Block in 1964 "is a positive item of evidence to show the acceptance of Mareta as far as the land is concerned. I submit that that has to be for that land only unless there is something additional that can be pointed to show acceptance to other lands. In the same year 1964 she was not put into the land Section 3A."

3. Mareta was 40 years old in 1942 when succession to the Akapuao 42 Block was made. She was not included and this confirms non acceptance by the family. This is one interpretation to be sure. However it may just as likely be the result of a family arrangement to that land.

4. In 1964 Mareta was accepted by the family in one Block but not included by the family in another Block.

5. Tanu Raina died in 1929; Mareta died in 1967; for 38 years she could have made application to succeed to this Block. It is acknowledged she never did apply. Thus we have it that this succession application is brought in 1983, some 54 years after Tanu's death.

This observation may or may not be significant. There are very many successions that this Court processes where grandchildren through their parents succeed to a grandparents interest, i.e. the parent has not succeeded in his or her lifetime. Little weight I believe can therefore be placed on this submission.

6. Since this is the first time a succession application has been lodged this is the first time the blood family can object.

7. The occupation right granted to Tanuiti over this land in 1948 was not opposed by Mareta.

Mr Tylor pointed out the irregularities associated with this occupation right and whether in fact the Court had jurisdiction to grant it. This is another matter which Mr Tylor may or may not which to test by means of a future substantive application. However I place no significance on Mareta not opposing the occupation right - one would not expect a sister to oppose an application of this nature by her brother.

I hope I have fairly summarised the submissions presented to me by both Counsel - and if I may say so, very carefully prepared and well presented. It is always fascinating in the law to have two opposing Counsel both relying on the one Judgment to promote their cause.

I turn now to the issue of whether this adoption order confers on Mareta an unqualified right to succeed to this Block in accordance with Maori custom. Mareta was born in 1902; legally adopted by Tanu Raina in 1917 at the age of 15 years; and died in 1967 at the age of 65. Tanu Raina died in 1929 aged 50. In any event Tanu Raina adopted Mareta when she was 15 and presumably looked after her and the other two adopted children for the next 12 years. She was 27 when he died.

Now there is no evidence to suggest that Tanu Raina up until his death intended three adopted children to be treated differentially in any way whatsoever. He completed a legal adoption in respect of each of the three children in 1917 and on that basis which is the only evidence placed before me, it is clear that Tanu Raina at least gave recognition to the three adopted children which would entitle them to succeed equally to his land.

However I am required, if I accept the principles of Maori custom enunciated by Chief Judge Morgan, to consider recognition not only by the adopting parent but also "his near family".

Now the first evidence of recognition I'm told by Mr Tylor is in 1940 when the three adopted children succeed Tanu Raina in the Tiki Oki 47A Block. That is 11 years after Tanu Raina passed away.

Next Mr. Clarke relies on the succession in 1942 to Tanu Raina in the Akapuao 42 Block when the "family agree" to the interests going to Tanuiti and Rangi to the exclusion of Mareta.

Another 22 years elapse before Tanuiti and Rangi are included in a multiple succession in Vaimaauga Section 3 to the exclusion of Mareta. This was done on the 10th February 1964. On the 14^th December 1964 Mareta applies for succession to Tanu Raina's interests in the Taikura 6B Block. Those present in Court would not agree to Mareta having a life interest only and the three adopted children succeeded equally.

It would seem clear to me that taking those events just recounted in sequence the near family in 1964 certainly appeared to have given definite recognition to Mareta. Whether that is final within the rule of Maori custom no-one can tell from the evidence presented. Mr Clarke has submitted that recognition in one Block does not qualify for final recognition to justify succession to all Blocks. That is true but I must look at the sequence between the adoption in 1917 and this succession in 1964. That's a period of 47 years when I have evidence of acceptance and recognition and the only instances where by "family agreement" only two of the adopted children are included and Mareta is excluded, and the other occasion on the multiple succession of Vaimaauga Section 3. Is this not the argument that Mr Clarke propounded viz. because there is only this evidence which might indicate non acceptance of Mareta should this be treated as now recognition over a period of 47 years - and more especially when the succession application for the Akapuao 42 Block was made by family agreement which I take to mean with Mareta's consent and approval at the time.

Since 1964 evidence of non-acceptance seems to have increased. However it must be remembered that Mareta died in 1967 and this non acceptance would presumably be generated by the successors of Tanuiti and Rangi who are now opposed to the successors of Mareta and opposed to the extent that Mareta has somehow been excluded from one of the Blocks that she originally succeeded to.

At this point it must be relevant to consider the following:

If an adopted child received final recognition both from the adopting parent and the near family - can that recognition be later revoked by a subsequent generation of "the near family".

I have had no evidence presented to me that this is recognised as Maori custom. And yet I believe this is what has happened in this case. Mareta was legally adopted and recognised by her adopted father in this lifetime. Then for 47 years following her adoption she is acknowledged by the "near family" by inclusion in two Blocks; and by family agreement allows her adopted brother and sister to together succeed to another Block. Can it now be suggested that this present generation objectors, many generations after the initial "near family", have the right to reject Mareta when their forefathers accepted her? I do not think so.

In this case I am required to apply Maori custom to establish acceptance of Mareta as an adopted child without blood rights. I have been given no evidence of special Maori custom applying to the family or variations of Maori custom. I have heard no evidence of acceptance or rejection of Mareta. I am required simply to place an interpretation on the Court records. For example Mr Tylor says of the records in M.B. 15/35 that they confirm a fraud on Mareta. Mr Clarke says they confirm a clear exclusion of Mareta. But as I have mentioned if the record states the order is by family agreement then the record does not necessarily disclose a fraud nor an exclusion. It may indicate as the records say a "family agreement" as to how a succession order will be made.

Again Mr Clarke submitted that because no application for succession to Tanu Raina was made in Mareta's lifetime then there is significance in his clients favour in this factor. Further that this occasion is the first opportunity the objectors have had of making a formal objection and indicating their rejection of Mareta because she had no blood rights to the land. But equally true is the fact that if the objection is upheld then the objectors would be entitled to Mareta's share in this land as it would return to its source Tanu Raina and the objectors would be entitled to that 1/3 share now held by Mareta. So that if Mareta has not applied to succeed to Tanu Raina in this Block neither has Tanuiti and Rangi. For this reason I don't see any significance in the original submissions which can assist me in determining acceptance or non acceptance of Mareta. The last in sequence recorded evidence that I have been asked to consider is that of the 14th December 1964 in M.B. 26/189 where it is stated by the near family present that they "will not agree to a life interest only for Mareta".

I believe the evidence establishes the necessary final recognition required to comply with the criteria for Maori custom applying to adoptions where there is no blood relation.

Accordingly there will be a succession order in favour of the ten children of the Deceased, viz. Ngametua m; Mary f; Tanu Raina m; Naomi f; George Edward m; Margaret f; Luia f; Stella f; Charlie m; and Mareta f; equally.

DILLON J