Maori
custom came hard up against pakeha practice with the Supreme Court deciding by
a narrow margin of 3:2 that the person in charge of a deceased estate has
primary authority in deciding where the deceased should be buried.
Recent years have seen
a run of distressing instances known colloquially as “body-snatching cases”
where extended family have tussled with close relatives of a deceased over
funeral arrangements. Maori custom
demands burial at the home urupa. A
surviving spouse and children usually prefer burial closest to the family home.
This sensitive issue
came before New Zealand’s highest court following the 2007 death of James
Junior Takamore. His immediate family
wanted to have him buried in Christchurch where they had lived for the previous
twenty years. Plans for the Christchurch
burial were thwarted when members of Takamore’s hapu from Kutarere in the Bay
of Plenty took his body north over the objections of his widow for burial on
the home marae.
The Supreme Court
ruled that his widow was entitled to possession of Mr Takamore’s body as
executor of his estate. She was given
permission to exhume his body for reburial at a place of her choice.
The five judges
sitting in the Supreme Court were not unanimous in their ruling on this
cross-cultural dispute.
Three of the judges
relied on the traditional pakeha common law rule: those appointed as executors
or administrators of a deceased estate have the duty and obligation to dispose
of the deceased. They should take into
account the views of close family members and, importantly, take into account
any views the deceased made before death.
“Body-snatching” is not the way to deal with differences of
opinion. Those disagreeing with
decisions about burial should air their differences in court and have a judge
weigh up the conflicting viewpoints.
Two of the judges
considered primary responsibility for burial decisions should not lie with the
executor or administrator. Disputes should
be put before a court prior to any burial.
The five Supreme Court
judges were of the same view on one point: the “might is right” approach of
traditional Maori custom which saw disputes settled by force has no place in
modern society.
Takamore
v. Clarke – Supreme Court (18.12.12)
13.001