Takamore v Clarke SC

• Jurisdiction: New Zealand
• Judge: Tipping,Mcgrath,Blanchard JJ,McGrath J
• Judgment Date: 18 December 2012
• Neutral Citation: [2012] NZSC 116
• Court: Supreme Court
• Docket Number: SC 131/2011

BETWEEN

Josephine Takamore

Appellant

and

Denise Clarke

First Respondent

Nehuata Takamore and Donald Takamore

Second Respondents

[2012] NZSC 116

Court:

Elias CJ, Tipping, McGrath, William Young and Blanchard JJ

SC 131/2011

IN THE SUPREME COURT OF NEW ZEALAND

Appeal from Court of Appeal decision finding the executor of a will was entitled to determine the place of burial and to take possession of the remains for reburial — appellant was deceased's sister — respondent was the deceased's partner and the executor of his will — deceased had expressed a desire to be buried in Christchurch — deceased was buried in the Bay of Plenty without the respondent's consent, by member of his Tuhoe family in accordance with tikanga observed by their hapu — respondent and the deceased's children wished to have him buried in Christchurch — whether New Zealand law entitled an executor to possession and disposal of a body — whether common law applied only to the extent it was not inconsistent with the tikanga.

Counsel:

J P Ferguson, H K Irwin and M M Tuwhare for Appellant

G J X McCoy QC, M Starling and K J McCoy for First Respondent

• A The appeal is dismissed.

• B The first respondent is entitled to proceed under the exhumation licence to have Mr Takamore reburied in a place of her choosing.

• C The matter is remitted back to the High Court in case any consequential orders are necessary.

• D Costs are reserved.

JUDGMENT OF THE COURT

REASONS

	Para No
Elias CJ	[1]
Tipping, McGrath and Blanchard JJ	[109]
William Young J	[171]

ELIAS CJ

1 There is important public interest in the disposal of human remains. That is not only for reasons of public health and decency (considerations which underlie the provisions of the Burial and Cremation Act 1964). The public interest is also engaged because in all societies and in all cultures the disposal of the dead is of great significance to the living and to the religious and cultural traditions to which the deceased and those who care about the deceased belong. Conflict about the disposal and treatment of the dead is inevitably distressing for all because it stirs deep feelings. Proper disposal of bodies engages the human rights to dignity, privacy and family.

2 In most cases, decisions as to interment or other disposal of human remains are taken by the immediate family of the deceased. Any disagreements between family members are either resolved or overtaken by the disposal achieved in result by those who carry the day. Those who prevail in fact may do so for a number of reasons: perhaps because they are deferred to on the basis of social or cultural ideas as to what is fitting (as is common in respect of the wishes of the spouse); perhaps because of their personal standing or the strength of their personalities; perhaps because they can invoke the deceased's own wishes in support of their position; or perhaps because they can invoke the authority of cultural or religious tradition to which the deceased or the family belongs. Such outcome may entail the wishes of some family members being overborne. They may remain deeply unhappy and unreconciled to the result. Although in the present case cross-cultural issues have exacerbated the differences between family members of the deceased, it should be recognised that deep differences as to the disposal of the dead arise without any such cross-cultural dimension.

3 The appeal concerns a claim to the High Court by Denise Clarke for orders for the recovery by her of the body of her long-term partner, James Takamore. He was buried without her consent by members of his Whakatohea and Tuhoe family in a family urupa at Kutarere in the Bay of Plenty in accordance with the tikanga observed by their hapu. 1 Ms Clarke and the two adult children of her relationship with Mr Takamore wish to have his body buried in Christchurch, where the family has lived for the last 20 years. Ms Clarke, who was appointed executor by Mr Takamore in his will, was successful in the High Court and on appeal to the Court of Appeal in her claim to be entitled as executor to determine where Mr Takamore is buried, although questions of remedy remain reserved in the High Court. Josephine Takamore, the sister of the deceased, appeals to this Court.

4 It is accepted by the parties that entitlement to bury someone who has died is not prescribed by any enactment and that the claims fall to be decided according to the common law of New Zealand. The appellant and two other family members who do not appeal (Mr Takamore's mother and brother) opposed Ms Clarke's application to the High Court on the basis that New Zealand law does not recognise an exclusive right of an executor to determine disposition of the body when the deceased is Tuhoe. In such circumstances, it is said that the common law gives effect to Tuhoe custom or tikanga. By it, the question of disposal is determined by the whanau pani (the wider bereaved family) according to cultural values and practices. Those values and practices take into account the views of the wife and children (who participate as members of the whanau pani) but have a strong preference, based on the importance of whakapapa, for the return of a deceased to the hapu to be buried with those linked to him by whakapapa.

5 Since Mr Takamore was buried in the urupa in accordance with the Tuhoe tikanga observed by his hapu, the appellant contends that the executor has no possessory right to his body for reburial, although she acknowledges the executor has standing to make application to the Court for reinterment of the deceased if proper grounds are made out. She says there is no proper basis in the present case to interfere with the burial of Mr Takamore.

6 Ms Clarke, for her part, maintains that under New Zealand law she has the right as executor to possession and disposal of Mr Takamore's body, as was recognised in the lower Courts. She acknowledges that her discretion as executor is

in the nature of a trust and subject to the supervisory jurisdiction of the High Court for abuse of power or unreasonableness, conditions which she says are not made out here

7 For the reasons that follow, I am of the view that neither opposing position taken by the parties is correct in law. In circumstances where there is dispute as to burial, either party has standing to bring the dispute to the High Court for resolution. Their claims are of competing right which fall to be resolved according to law by the High Court in its inherent jurisdiction.

8 The executor does not have the exclusive discretion to determine how the body is to be reburied or otherwise disposed of. Rather, Ms Clarke both as executor and as Mr Takamore's partner has standing to seek from the Court the right to disinter his body for reburial. On such application, her views as executor will be highly influential and may well be accepted by the Court in result.

9 Nor is it correct, as the appellant maintains, that because of the deceased's whakapapa the decision as to his burial lies with the whanau pani or the hapu to which it belongs, if their claims are challenged by others with standing to seek the determination of the Court (as Ms Clarke has both as executor and as Mr Takamore's partner). As is the case with the executor, those representing the whanau pani and seeking to maintain the burial already undertaken have standing to oppose Ms Clarke's application for exhumation and reinterment. Claims based on whakapapa and the tikanga observed by the hapu of the deceased are entitled to great weight in New Zealand law and may well prevail in a particular case. But the claim itself, like the claim of the executor, does not give rise to a possessory right in law against competing interests without Court resolution.

10 Claims in relation to burial have been extremely rare in New Zealand. In other common law jurisdictions there are reported decisions concerning disputed claims to the right to bury, including some with cross-cultural dimensions comparable to those arising in the present case. Although, as is discussed in what follows, there are statements in some cases that executors (or, in the absence of an executor, those entitled on intestacy to administration) have the right in law to determine questions of burial or other disposal, I conclude that there is no hierarchy of rights to possession of the body and its disposition. The responsibility to decide as to the disposal of the body where there is dispute is inescapably that of the Court on application made to it. In discharging its responsibility, the Court may choose to defer to one of the claimants. Alternatively, it may give specific directions. 2

11 When the jurisdiction of the Court is invoked in such disputes, the cases are uncomfortable not only because they usually involve deeply held differences between close family members, all of whom may sincerely believe that they are fulfilling a duty or otherwise doing the right thing by the deceased or the wider family. As importantly, the values behind the different positions may be very difficult for the Court to balance in reaching a fair and just result if they are taken from registers which are not commensurable. That will often be the case if the differences of view arise out of distinct religious or cultural value systems. A court-imposed result in such circumstances may not convince the disappointed party or indeed be universally convincing in its own terms. Although the position of a court asked to resolve such differences is not a comfortable one, there is nothing particularly unusual in that. Courts not infrequently have to decide between positions that are not readily comparable.

12 For the reasons given below, I have come to the conclusion that the claim for reinterment put forward by Ms Clarke and her children is to be preferred in all the circumstances. This is not because, as executor,...