Right to Decide About Funeral and Burial

By | February 15, 2013

Still some uncertainties

Arguments over where the late Mr James Takamore should be buried have led to a long-running legal dispute. Now the Supreme Court has spoken, but its decision in Takamore v Clarke (see footnote 2) leaves some questions unanswered.

James Takamore and his partner, Denise Clarke, had lived in Christchurch for many years. They had two adult children. After Mr Takamore died suddenly, Ms Clarke arranged for him to be buried in Christchurch. His friends remember him saying he wanted to be buried in the lawn cemetery there. Before the funeral took place, Mr Takamore’s family took the body away to the North Island for burial in accordance with Tuhoe custom. Ms Clarke and the two children objected and applied to the High Court.

The High Court agreed that the body should be returned to Ms Clarke for her to arrange burial in Christchurch. The judge emphasised that the family should normally agree on the funeral, and burial or cremation but if they couldn’t agree, then Ms Clarke, as executor of the will, had the right to decide. The case was appealed to the Court of Appeal, which agreed with the High Court, but for slightly different reasons. The case then went to New Zealand’s highest court.

To the highest court

The Supreme Court looked at the few New Zealand cases that have arisen over the years, and also cases from Australia and England. The five Supreme Court judges all agreed that, where possible, the family should agree about the funeral, and burial or cremation. Three of the judges agreed that the executor has the role of ‘first decider’ if the family cannot agree. The executor should of course take into account the views of the deceased, as well as cultural or religious practices of the deceased’s family or whanau. If any of the family object to the executor’s decision, they can apply to the High Court. If there is no executor, e.g.: if there is no will, the administrator of the estate (usually the main beneficiary) would be first decider.

The other two judges in the Supreme Court didn’t agree that the case law gives any such power to an executor or administrator as ‘first decider’. They thought that any dispute needs to go straight to the High Court. None of the judges discussed who should pay for this expensive litigation. The judges also emphasised the choices made by the deceased during his lifetime should be taken into account. Mr Takamore had moved to Christchurch with his partner and had not lived in accordance with his ancestral tikanga.

Reliance on common law

As Parliament has not made any law about any of this, the judges have been forced to rely on the common law, which we inherited from England in 1840. The judges, however, emphasised that English common law applies in New Zealand only to the extent it’s relevant in our circumstances. If the deceased was Maori, then the common law must be adapted to the tikanga of the deceased. Rather than being locked into English law, as it was in 1840, the courts adapt the common law to present day circumstances in New Zealand.

The judges also had to consider exactly when Maori custom or tikanga should be part of the common law in New

Zealand and should apply if the deceased was Maori. Some of the judges thought that Mr Takamore had abandoned his ancestral tikanga and it should not be imposed when he clearly did not want this. Other judges said that the common law could not incorporate customs which might lead to violence. Tuhoe custom can involve some family members taking away a body without consent – by force if necessary. A stand-off over the funeral is thought to enhance the mana of the deceased.

The Supreme Court accepted that tikanga was a relevant consideration. The three majority judges said the executor or administrator should take tikanga and other traditions into account where relevant and the High Court could intervene if asked to.

It seems clear the traditions that were important to the deceased – religion, social customs or tikanga – need to be taken into account. We still have, however, no clear ruling on when these factors will prevail and when executors can decide otherwise.

Footnote 2 = [2012] NZSC 116

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Copyright, NZ LAW Limited. Editor: Adrienne Olsen. E-mail: adrienne@adroite.co.nz. Ph: 029 286 3650.

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