In disputes over burial custom, it is the executor who has final responsibility for decisions over the manner and place of burial. With a high proportion of inter-racial relationships in New Zealand, Maori burial custom is coming into conflict more frequently with English-derived common law.
The 2007 death in Christchurch of Jim Takamore resulted in a cultural collision between his mother and sister on one side and his partner on the other. Ms Clarke, his partner, had lived with Mr Takamore for twenty years and was named as executrix in his will. Before his death, Mr Takamore had expressed the desire to be buried in Christchurch. This was also Ms Clarke’s preference as she would be remaining in Christchurch following his death.
Contrary to these wishes, Mr Takamore’s body was seized by Tuhoe whanau prior to burial and taken north to the Kutarere Marae near Taneatua for burial with ancestors on the home marae.
Following an urgent hearing, the High Court ruled that Mr Takamore’s body be returned to Christchurch.
Mr Takamore’s sister appealed against the court order, arguing Tuhoe custom was paramount and that he should remain with his people.
The Court of Appeal set out detailed rules governing the relationship between Maori customary law and English-derived common law.
For Maori custom to be part of the law of New Zealand it must be a long-standing custom, must have continued without interruption since its origin, must be reasonable, must be certain in its terms and must not have been overturned by any statute.
The court ruled that Tuhoe burial custom could not be considered reasonable because it allows the use of force to take a body without agreement. Use of physical force to settle private disputes is directly contrary to the rule of law.
It also ruled that any wishes of the deceased about the manner and place of burial are not directly relevant. It is something for the executor to take into account.
The court said Maori burial custom can be incorporated into the common law by having the executor discuss the manner and place of burial with the wider family, where possible. If no consensus can be reached, it is for the executor ultimately to decide.
The court ruled that Ms Clarke as executrix was entitled to possession of Mr Takamore’s body and was entitled to make the final decision as to burial.
Takamore v. Clarke – Court of Appeal (23.11.11)
(12.11.002)