Family loses legal battle over body burial

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 family of a man, who was buried in a place against his partner's wishes, has lost a five-year legal battle to have his body buried with his ancestors, the Supreme Court has ruled.

James Takamore was interred at a marae in 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 centred on whether the Court of Appeal was correct that the executor was entitled to decide on where a body should be buried.

Ms Clarke was entitled to proceed and have the body exhumed for a reburial in a place of her choosing.

Mr Takamore was buried in August 2007 in Kutarere in Bay of Plenty, alongside his father and other family members.

His family believed their actions were justified according to tikanga.

The Supreme Court today said there was "significant cross-cultural misunderstanding'' between Ms Clarke and Mr Takamore's sister and extended whanau.

The justices unanimously dismissed Ms Takamore's appeal.

Three of the justices said there was common law rule under which personal representatives had both the right and duty to attend to disposal of the body of a dead person.

"The rule becomes operative where there is no agreement or acquiescence among the family on what is to be done, where arrangements have broken down, or where nothing is happening.''

They said the representative should take into account the views of those close to the person.

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 Bay of Plenty.