A Supreme Court ruling in the Takamore body-snatching case looks set to test “uncharted cultural waters”.
The decision, a culmination of five years of legal action between James Takamore’s partner and his whanau, could also lead to a standoff between Tuhoe and authorities.
Mr Takamore died of an aneurism in 2007 and was to be buried in Christchurch, where he had lived with Denise Clarke and his two children for nearly 20 years. But his Tuhoe relatives spirited his body from the funeral parlour to his original birthplace in the Bay of Plenty, where they buried him next to his father at Kutarere Marae, near Opotiki.
Ms Clarke, who is executor of Mr Takamore’s estate, obtained a High Court judgment confirming her right to decide his burial place and ordering an exhumation.
The decision was upheld in the Court of Appeal, but Mr Takamore’s sister, Josephine Takamore, appealed to the Supreme Court against that decision on the grounds that Tuhoe tikanga, or customary protocol, should decide the location of burial.
In a decision published yesterday, Chief Justice Dame Sian Elias said Ms Takamore’s appeal had been unanimously dismissed.
Giving rights to anyone bar the executor would have led to massive uncertainty and encouraged more family disputes to be sorted out by whom can grab the body first. The Supreme Court decision is welcome. Their media summary states:
The Supreme Court has unanimously dismissed Ms Takamore’s appeal. Three Judges of the Supreme Court (Tipping, McGrath and Blanchard JJ) have held that there is a common law rule under which personal representatives have both the right and duty to attend to disposal of the body of a deceased. The rule becomes operative where there is no agreement or acquiescence among the family on what is to be done, where arrangements have broken down, or where nothing is happening. In exercising that power, the personal representative should take account of the views of those close to the deceased, which are known or conveyed to him or her. Any views expressed by the testator on what should be done are an important consideration.
Those three Judges have also decided that under New Zealand’s common law a person who is aggrieved with the decision of the personal representative may challenge it in the High Court. The Court must address the relevant viewpoints and circumstances and decide, making its own assessment and exercising its own judgment, whether an applicant has established that the decision taken was not an appropriate one.
The Chief Justice and William Young J agreed that Ms Takamore’s appeal should be dismissed but would not have recognised the role of personal representatives. On their view, any disputes about what should be done with the body of the deceased can only be resolved by the Court.
I’d make the point that I think the views of the testator should be more than just an important consideration. I think they should be legally binding on the executor so long as they are legally permissible and affordable.