Body burial clash decision reserved

James Takamore was laid to rest in Bay of Plenty following his death in 2007, but his partner has been fighting to have him reburied in Christchurch. Photo / File

The Supreme Court has reserved its decision in a five-year legal battle over the final resting place of a man whose family took his body and buried it against his partner's wishes.

James Takamore was interred at a marae in the Bay of Plenty in accordance with tikanga, or Maori customs and traditions, after he died from an aneurism in 2007.

Since then his partner and executor of the will, Denise Clarke, has been fighting to have his body returned to Christchurch, where he lived with her and their two children for 20 years.

Both the High Court and the Court of Appeal ruled it was unlawful of Mr Takamore's family to take his body, but his sister Josephine Takamore appealed to the Supreme Court.

The case centres on whether the Court of Appeal was correct that the executor was entitled to decide on where a body should be buried.

A panel of five Supreme Court judges heard two days of submissions in Wellington before reserving its decision today.

In her closing remarks, Chief Justice Dame Sian Elias noted Mr Takamore's family had travelled some distance to attend and thanked the court for its calm throughout proceedings.

Ms Clarke's lawyer Gerard McCoy today urged the judges to dismiss the appeal and order mandatory disinterment of Mr Takamore.

But he conceded there would probably have to be another hearing on Mr Takamore's final resting place, even if the court found in his client's favour.

Mr McCoy told the court Mr Takamore's family was determined to take his body ``by hook or by crook'' and tikanga had failed because it could not resolve the family dispute, which resulted in a "might is right'' situation.

"The widow is particularly vulnerable because of this.''

Mr McCoy said weight was given to Ms Clarke's position because she moved quickly to the High Court to stop her partner from being buried in the Bay of Plenty, even "while the body was being moved in an unrefrigerated van'' up the country.

He said it was Ms Clarke's legal duty as executor to ensure her partner was properly buried.

But the family's lawyer James Ferguson argued she should have stepped aside as executor because she had a conflict of interest.

Ms Clarke was not only executor but a party to the dispute over her partner's burial, which meant her decision was "skewed from the start'' and allowed her to play the trump card.

The dispute needed an impasse breaker, which could either be the executor or a court - but in this case the executor was conflicted.

"Then in my view the executor needs to step aside.''

Yesterday, Mr Ferguson told the court that Tuhoe tikanga should be given weight alongside common law considerations.

He said tikanga applied to Mr Takamore because he was Tuhoe and he could never "opt out'' of the tikanga process.

Tikanga had been handed down through the generations of Tuhoe people and the process worked because there were very few disputes about burials, he said.

Mr Ferguson said tikanga should be given a chance to work out this conflict, rather than court intervention - a process he said could take weeks, months or even years.

Mr Takamore was originally from Taneatua, in Bay of Plenty, and had returned to the North Island only twice in 20 years since moving to Christchurch.

He had specified in his will that he wanted to be buried but did not say where.

Ms Clarke had intended for him to be buried in Christchurch but before that could happen the Takamore family collected his body and buried it in the Bay of Plenty.