HERALD WEEKLY ISSUE 435 : 26 November 2008

Can an adopted child inherit his adoptive parents’ lands?

The question before the Court of Appeal was whether a legally adopted child (with pirianga toto) has the same rights of succession to lands from their adoptive parents as the natural children. In other words, does the legally adopted child qualify as a ‘direct descendant’ as if they were natural children?
The application for special leave to appeal after the expiry of the normal time limit was heard by Sir Ian Barker (Presiding), Justice Robert Fisher and Justice Barry Paterson.
John McFadzien represented a client who was legally adopted within the family by her aunt and uncle who already had one (natural) adult child of their own.
Counsel wants the CA Justices to address a specific issue: ‘What is a direct descendant” arising from a decision by Justice Smith.
Smith held that a ‘natural child’ is a ‘direct descendant” whereas two adopted children were regarded as not “direct” descendants.  
One of the grounds for seeking special leave to appeal was that once the adoption becomes complete, including the child being allowed onto the title of the land, the adopted child is a direct descendant the same as a natural child is.
The application for special leave to appeal to the Court of Appeal was opposed by legal counsel, Tina Browne on behalf of her client.
In the court, Browne said the land in contention is owned by way of vesting orders pursuant to s3 of the Cook Islands Act 1915 and told the CA Justices that this sort of ownership is a different type of ownership from an occupation right but was similar in that it makes provision for the landowner to build within certain time and live on it.
The claim is about the house (referring to the family home) and who the competing claimants may be.
Why they are seeking special leave
The case involves a parcel of land that was originally granted by way of an occupation right in 1907 and the right was given to a particular person “and his direct descendants”.
The scenario appears to be that the adoptive parents have passed away and the (natural) daughter is in her 70s and the (legally adopted) daughter is now 40. Both women claim their father promised her the house to live in.
The adopted child lives in the family home and has been there for all her life and has clamed her right to live in the house. However, this is opposed by her elder sister (natural child of the parents) who wants to reclaim the family home as her own.
The elder sister claims she has the sole succession rights to land because it is owned by way of vesting orders.
Counsel for the younger sister appears to be arguing that her legal adoption gives her all the legal rights as well as customary rights because her natural father is also in the land.
The application heard yesterday was to seek special leave to appeal is that once the adoption is complete, including the child being allowed onto the title of the land, the legally adopted child is deemed a “direct” descendant in the same as a natural child is.
McFadzien said there have been cases over the years as to the status of adopted children and succession to land interests of their adopted parents, but there does not appear to have been a specific ruling on whether in circumstances such as that before the Court, an adopted child can be regarded according to law or custom, as a “direct” descendant.
The succession to the land was in 1994, after their father had passed away but subsequently, there had been a ‘falling out’ and the name had been removed.
McFadzien told the court the application was by way of the final roll of the dice by his client to settle the matter through the court.
Why the application is being opposed
Mrs Browne took the position that the case is not one that involves general principles.
According to McFadzien, her submission that in this particular case, whatever custom or general legal principles might say, the rights of the adopted children in this case were governed by the wording of the 1907 Court order granting the original occupation right and the words “direct descendants” were intended to mean natural children only and not adopted children.
At the hearing, Browne appeared to be saying that adoptions can be undone and inheritance of lands from your adoptive parents can only be by consent of the natural children of the adoptive parents. No cases were given in support of that contention.
The leading adoption cases referred to were the CA case of Maui Short adoption (where in her 80s the applicant who was adopted by her grandaunt successfully applied to inherit from natural mother’s land). The other was the CA case of Ema Moekeau case originally heard by Judge Morgan where the adopted daughter (of no blood connection) inherited everything from her adoptive parents thereby excluding all other close relatives to her parents who did have blood connections.
The CA Justices have reserved their decision as to whether or not there should be a further hearing on this issue. They were also critical of the fact that the issue as to the meaning of “direct descendant” had not been raised earlier.

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