Chapter 14
New Zealand law on care and custody of the body

Takamore v Clarke

14.18The case of Takamore v Clarke is the most significant legal development in this area of New Zealand common law in recent years. It has added to judicial consideration of the executor rule in New Zealand common law, which before that had been considered by only a small number of New Zealand cases. It is also legally significant because it considers the interaction between the common law, in the form of the executor rule, and tikanga Māori. We briefly discuss how the case arose and the significant points of the decisions of the High Court, Court of Appeal and Supreme Court.

Facts of the case

14.19The case concerned an application to the High Court by Denise Clarke for orders for the recovery of the body of her long-term partner, James Takamore. Mr Takamore and Ms Clarke had lived together in Christchurch for over 20 years and had two adult children. Mr Takamore was originally from the Bay of Plenty and was of Ngāi Tūhoe and Whakatōhea descent.

14.20After Mr Takamore died unexpectedly in 2008, Ms Clarke and their two children decided to bury his body in the Ruru Lawn Cemetery in Christchurch, and arranged to have his body lie in state on a local marae for a few days prior to burial.

14.21In the days preceding his funeral, members of Mr Takamore’s Bay of Plenty family travelled to Christchurch and entered into discussions with Ms Clarke to bury Mr Takamore’s body in an urupā in the Bay of Plenty alongside his father and other ancestors. Discussions went on over the course of the day, but no conclusion was reached. After Ms Clarke and her children eventually went home for the night, members of his Bay of Plenty family placed Mr Takamore’s body in a van and took it to the Bay of Plenty. They buried the body in the family urupā there in accordance with the tikanga observed by their hapū.

14.22 In the interim, Ms Clarke obtained an urgent court order to prevent burial in the Bay of Plenty from taking place and for police to take custody of the body. The order was not served before burial went ahead.557  Ms Clarke then applied for an order to disinter the body in an application to the High Court.558  She based her claim on her status as executor of Mr Takamore’s will, which she said gave her the right and duty to determine what happened to his body, drawing on English and New Zealand common law.

14.23Mr Takamore’s sister, mother and brother opposed the claim, arguing that New Zealand law does not recognise the executor rule where the deceased is Māori. In that case, Māori customary law should apply, and it would then be for the whānau pani and hapū (the deceased’s close family and tribal sub-group, respectively) to determine the location of burial in accordance with principle and practice drawn from tikanga Māori.

Decisions in the High Court and Court of AppealTop

14.24The High Court and Court of Appeal both found in favour of Ms Clarke, on the basis that New Zealand recognises a common law right of decision which vests in the executor of the deceased in a burial dispute. Tikanga Māori could not apply to determine the dispute in this case.

14.25Fogarty J in the High Court held that, under common law, an executor named in the will of the deceased who is “ready, willing and able to arrange for the burial of the deceased’s body” has the right of possession of the body as against all others.559  He then examined “whether and how Tuhoe tikanga collides with the common law”.560
14.26He concluded, based on the evidence available to the Court, that Tuhoe tikanga had not evolved to allow “an individual of Tuhoe descent, living outside tribal life, to make decisions for him or herself, or for their immediate family to make decisions on their own behalf, as to where his or her body is to be buried.”561  Relying on a requirement of reasonableness, he concluded that the application of Tūhoe tikanga in the whole of the circumstances of the case was not reasonable, being contrary to underlying principles of individual freedom contained in the common law.562
14.27Upon appeal by members of the Takamore family, the majority of the Court of Appeal affirmed the existence of the executor rule in New Zealand common law.563  They also considered whether Tūhoe customary law could nonetheless apply to determine the dispute, and required it to be continuous, reasonable, and certain before it could be recognised within common law and applied by the courts. Insofar as the relevant custom authorised one party taking the body of the deceased without consultation, the majority found it to be contrary to the principle of “right not might” and therefore not reasonable.564  The majority held, therefore, that it could not apply to determine the dispute.565  The majority also noted that applying Tūhoe custom to determine a dispute might raise conflict of law issues between those entitled to rely on Tūhoe custom and those who come under the common law rules.566
14.28They then went on to suggest “a more modern approach” towards custom law might be possible. Under such an approach custom law would be integrated into the common law where possible, rather than subjected to strict recognition-based rules as has been the orthodox approach of the courts.567  Here, for example, the executor could be required to facilitate a process of discussion and negotiation among members of the whānau pani, although the final decision would still ultimately be that of the executor.568

The Supreme Court’s decisionTop

14.29The Court of Appeal’s decision was then appealed to the Supreme Court.569  The case was heard over two days in December 2012, which by now was four years since Mr Takamore’s death.

14.30The Supreme Court unanimously held that Ms Clarke should have the right to decide where the body lay, although the members of the Court reached that decision for different reasons. The majority (McGrath, Tipping and Blanchard JJ) held that that the executor rule formed part of New Zealand common law. The Court’s role was to assess the appropriateness of the executor’s decision. The majority found that Ms Clarke’s decision to bury the body in Christchurch was appropriate. The minority (Elias CJ and William Young J) concluded that the executor rule was not part of New Zealand common law, but that Ms Clarke should, in the circumstances of the case, be entitled to make the decision as to the location of burial of Mr Takamore’s body.

McGrath, Tipping and Blanchard JJ

14.31The majority judgment, delivered by McGrath J, proceeded on the basis that the executor rule in New Zealand was “well-established”:570

We are satisfied that there is a common law rule under which personal representatives [executors] have both the right and duty of disposal of the body of a deceased.

14.32Accordingly, Ms Clarke as executor had the legal right of decision. The majority held that the Court was also required to consider whether her decision to bury Mr Takamore in Christchurch was appropriate.571  They noted that, although this was a case with “deeply held views”, having regard to Mr Takamore’s life choices and that burial in Christchurch would reflect the wishes of his partner and children, the decision was appropriate and the Court would uphold it.572
14.33Significant parts of the decision centred on the operation of the executor rule in New Zealand common law. First, the majority said that the executor should take into account any views expressed by the deceased but, consistent with established common law, is not legally bound to carry out those wishes.573  The executor should also take into account views of those close to the deceased that are conveyed to him or her, although the executor is not required to seek them out and is entitled to have regard to the practicalities of achieving burial without undue delay.574  The executor should also take into account preferences as to customary, cultural or religious practices, including Māori burial practice, if such preferences are raised by family or whānau, or if they form part of the deceased’s heritage.575
14.34Secondly, the majority said that the executor’s decision can be challenged in the High Court and, significantly, that the Court will review the substance of the decision.576  This approach was said to be straightforward and capable of providing a prompt decision, while also enabling the Court to ensure that the full range of interests and practices in a particular dispute are respected and recognised.577  This legal development is quite novel because the trend throughout common law jurisdictions has been that where there is an executor who is willing and able to exercise the right, the court will not interfere with the substance of their decision.578  The submission that the Court “should not interfere with the discretion of an executor unless it was exercised improperly, capriciously or wholly unreasonably” was rejected,579  with the majority concluding:580

[T]he 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 appropriate.

14.35Thirdly, the majority suggested that in a dispute where there is no executor, the right of decision vests in the person who would have the right to administer the estate, according to basic rules of succession law. The person’s spouse or partner would have the highest claim, followed by a hierarchy of individuals prioritised according to their kinship links with the deceased.581
14.36Fourthly, the majority stated that the executor’s power to ensure proper disposal of the deceased continues following burial, but that a court order will be required in addition to the disinterment licence that is required by the Burial and Cremation Act 1964.582
14.37The majority decision has elaborated on aspects of the executor rule in several important ways, although questions as to its scope and operation remain.583

Elias CJ and William Young J

14.38Elias CJ and William Young J took a different view as to the rights of executors in this context. In separately written judgments, neither Judge recognised the executor rule as forming part of New Zealand common law.584  Both would have upheld the decision of Ms Clarke to bury the body in Christchurch, but not on the basis of her status as executor.585
14.39Elias CJ noted that “the common law as to control of burial is obscure”586  and that “New Zealand authorities are few and sparsely reasoned” and that she did not regard them as authoritative in the present case.587  She regarded the executor rule as inappropriate having regard to modern social conditions and expectations, impractical, inconsistent with tikanga and with the established common law position that there is no property in a body.588  Of the majority’s approach, she said:589

It is not sufficient answer to the legitimate interests of others that the decision of the executor will be subject … to the supervisory jurisdiction of the Court. … I do not think deference to a primary decision-maker (even one subject to the supervision of the court) is sufficient response to the strength of the other interests affected in such cases.

14.40William Young J critiqued the English and New Zealand cases discussing the executor’s authority590  and noted the practical problems the executor rule can cause.591  He concluded as follows:592

The final – and I think decisive – consideration is Māori (in this case Whakatohea and Tūhoe) custom. The Chief Justice’s solution does not fully accommodate custom because it provides for a decision-maker (in the form of the High Court) in lieu of a process under which there is no ultimate decision-maker and which can, in the end, only be resolved by consensus, acquiescence or submission. It does, however, involve a substantial concession to custom in that it precludes any single participant (who may not be a family member) determining the outcome. … I accept that the reasons of Tipping, McGrath and Blanchard JJ also accommodate custom but this is to a lesser extent.

14.41Both Elias CJ and William Young J concluded, therefore, that the executor rule does not form part of New Zealand common law and that no single participant in the burial process has a legal right of decision. Rather (in the words of Elias CJ):593

The responsibility of burial is a shared responsibility and falls to be exercised according to the circumstances. The law has no role to play except to ensure decent and prompt burial, and where dispute arises. In the absence of dispute, the executor has sufficient authority to proceed to bury the deceased. In the absence of objection by others, including the executor, the privilege of burial may equally be exercised by other close family members.

14.42Elias CJ observed that, where family and friends fail to agree, they should approach the High Court to determine their claims under its inherent jurisdiction.594
557Clarke v Takamore, above n 548 at [7].
558At [9].
559At [47].
560At [53].
561At [73].
562At [89]. Fogarty J said he had reached this conclusion “without the need to formally decide: (a) the content of the relevant Tuhoe tikanga; and (b) whether it is part of the common law of New Zealand.”
563Takamore v Clarke (CA), above n 535, at [236], [259] and [262] per Glazebrook and Wild JJ.
564At [162]–[165].
565At [136]–[175].
566At [192]–[196].
567At [254].
568At [255]. Compare the comments of the Supreme Court majority in Takamore v Clarke, above n 526, at [156].
569Takamore v Clarke (SC), above n 526.
570At [152].
571At [166].
572At [169]
573At [156].
574At [156].
575At [156] and [164].
576At [162].
577At [162].
578See Takamore v Clarke (SC), above n 526, at [171] per William Young J; Takamore v Clarke (CA), above n 535, at [204].
579At [161].
580At [162].
581At [143]–[148].
582At [159].
583See ch15.
584At [90] per Elias CJ and at [214] per William Young J.
585At [101]–[107] and [175].
586At [51].
587At [62].
588At [75]–[86].
589At [84].
590At [177]–[181] and [194]–[198].
591At [208]–[211].
592At [213].
593At [90].
594At [7] and [91].