Takamore v Clarke SC

JurisdictionNew Zealand
CourtSupreme Court
JudgeTipping,Mcgrath,Blanchard JJ,McGrath J
Judgment Date18 December 2012
Neutral Citation[2012] NZSC 116
Docket NumberSC 131/2011

[2012] NZSC 116

IN THE SUPREME COURT OF NEW ZEALAND

Court:

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

SC 131/2011

BETWEEN
Josephine Takamore
Appellant
and
Denise Clarke
First Respondent
Nehuata Takamore and Donald Takamore
Second Respondents
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

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.

The issues were: whether New Zealand law entitled an executor to determine place of burial and whether common law applied only to the extent it was not inconsistent with the tikanga.

Held (per majority): In most common law jurisdictions, Williams v Williams was treated as the authority on the responsibilities and rights of personal representatives in relation to the body of a deceased person. Williams established that the executors were entitled to the possession and were responsible for the burial of a dead body.

Williams remained the core authority in the United Kingdom. UK authorities had also discussed the right to respect for private and family life required that the views of a deceased person as to funeral arrangements and disposal of their body be taken into account. In Australia, the common law principles were well established concerning the duty of the executor to dispose of the deceased's body and therefore the right to its possession for the purposes of disposal. In Canada, the common law position generally applied with executors having the right to determine the manner and place of disposal.

Williams was adopted and applied in New Zealand in Murdoch v Rhind. The common law rules concerning the executor's right and duty to determine the manner and give effect to the disposal of the deceased's body were well-settled in New Zealand. Where no executor had been appointed or was available or willing to act, the right to decide became that of the person who was the potential administrator, in the sense of having the priority right to claim administration under New Zealand law.

The common law rule was built on experience over many years with regard to perceived social necessities and changing public policies. In particular it had been developed by requiring the personal representative to take into account different cultural, religious and spiritual practices as well as the views of immediate and wider family. Such development was consistent with the relevant statutory context in New Zealand. It ensured that due weight was given by the common law to the tikanga concerning Maori burial practices, where they arose and were brought to the attention of decision-makers. In New Zealand the existence of a common law rule in this form was well-established. The continuation of the rule as to the personal representative's role was highly desirable and was both practical and convenient as having a decision maker would serve the desirability of expedition in a matter which is the occasion of feelings of great grief and loss, while also allowing relevant matters to be addressed.

In exercising the power, the personal representative should take account of the views of those close to the deceased, which were known or conveyed to them. That would include views that arose from customary, cultural and religious practices, which a member of the deceased's family or whanau considered should be observed. Any views expressed by the deceased on what should be done were an important consideration. There was no requirement, however, for the personal representative to engage in consultation.

The power of the personal representative to ensure proper disposal of the body of the deceased continued following burial. Where the personal representative sought disinterment, an order of court authorising that step would be required, independently of seeking a licence to disinter under the Burial and Cremations Act 1964. Where a burial had already occurred, the Court would consider whether, taking account of all the circumstances, the decision of the personal representative was, or remained, appropriate.

The common law was not displaced when the deceased was of Maori descent and the whanau invoked the tikanga concerning customary burial practices. Rather, the common law of New Zealand required reference to the tikanga, along with other important cultural, spiritual and religious values, and all other circumstances that must form part of the evaluation. Personal representatives were required to consider these values if they formed part of the deceased's heritage. If the dispute was brought before the Court because someone was aggrieved with the personal representative's decision, Maori burial practice had to be taken into account.

Consideration of the tikanga was accordingly required by the common law in this area. In the end, it would be on the assessment of all the circumstances of the case that, where it became necessary, the Court would reach its determination on whether the personal representative's decision was not appropriate. In this way, the common law enabled all relevant values and circumstances to be taken into account by those who had the responsibility of decision-making. The decision was for the personal representative, subject to the Court's ability to intervene if that decision is inappropriate.

As executrix, C had power under the common law rule to determine how and where the deceasedwas to be buried. She was required to exercise this once she was apprised of the views of the deceased's sister and Bay of Plenty family. She had discussed with them their preferences and the tikanga underlying them but had not acquiesced in the wishes of whanau. The taking of the body was not authorised by C who had the legal power to determine how and where the body was to go.

The deceased had made his life in Christchurch with his partner C and their children, living there with them for over 20 years until his death in 2007. Their urban life meant that, following his death, C and their adult children had little relationship with Kutarere. The fact that the deceased was now buried in Kutarere carried little weight because C, as the person with power to decide at law, had not agreed or acquiesced in that course that led to his burial there. The deceased's life choices, in relation to living in Christchurch with his partner and now adult children, carried the greatest weight and ultimately were determinative. The decision taken by C reflected her own views and those of her children. For these reasons, it was an appropriate decision.

The Chief Justice allowed the appeal but on different grounds. Elias CJ held that an executor did not have the exclusive discretion to determine how the body was to be reburied or otherwise disposed of. Rather, C both as executor and the deceased's partner had standing to seek the right to disinter his body for reburial. On the facts of the case C was entitled to decide the burial place of the deceased.

Appeal dismissed. C was entitled to proceed under exhumation licence to have deceased reburied. Case remitted to High Court in case any consequential orders were necessary.

  • 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...

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