Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733.
This case concerned the burial of Ms Clarke’s long-term partner, Mr Takamore, who was of Tūhoe descent. Without Ms Clarke’s permission, members of his Tūhoe whānau buried Mr Takamore in accordance with Māori tikanga in the Bay of Plenty. Ms Clarke, executor of his will, sought to recover his body and bury him in Christchurch, where they had lived together for the previous 20 years with their two children.
Ms Clarke succeeded in the High Court. Ms Takamore, sister of the deceased, appealed the decision to the Court of Appeal, which upheld Ms Clarke’s right to dispose of Mr Takamore’s body. The Supreme Court (“The Court”) granted Ms Takamore leave to appeal from the Court of Appeal. Ms Takamore claimed that Mr Takamore should be buried according to Māori burial custom, which provides for the return of whānau to tribal burial grounds. Ms Clarke contended that she had the right as executor to dispose of his body.
The first issue concerns whether the executor has exclusive right to determine the disposal of the deceased. The second issue addresses the role of tikanga Māori in common law.
The Court unanimously dismissed the appeal and granted Ms Clarke the right to have Mr Takamore reburied. The majority, Tipping, McGrath and Blanchard JJ and minority, Elias CJ, concluded with different reasoning.
I Executor Rule
A Decision
The Court agreed that no statute specified who had authority to dispose of the deceased. The majority, in line with the lower court judgments, concluded that executors have exclusive right to dispose of the deceased (“the executor rule”). They considered other common law jurisdictions and concluded that, Williams v Williams, an English case adopted by New Zealand in Murdoch v Rhind, provided authority that the executor’s decision is determinative.
