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| IN THE SUPREME COURT OF NEW ZEALAND |
| SC 131/2011 [2012] NZSC 116 |
| BETWEEN JOSEPHINE TAKAMORE |
| AND DENISE CLARKE |
| AND NEHUATA TAKAMORE AND DONALD TAKAMORE |
| Hearing: 17-18 July 2012 |
| Court: Elias CJ, Tipping, McGrath, William Young and Blanchard JJ |
| Counsel: J P Ferguson, H K Irwin and M M Tuwhare for Appellant |
| Judgment: 18 December 2012 |
JUDGMENT OF THE COURT
AThe appeal is dismissed.
BThe first respondent is entitled to proceed under the exhumation licence to have Mr Takamore reburied in a place of her choosing.
CThe matter is remitted back to the High Court in case any consequential orders are necessary.
D Costs are reserved.
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REASONS
Para No
Elias CJ [1] Tipping, McGrath and Blanchard JJ [109] William Young J [171]
ELIAS CJ
There is important public interest in the disposal of human remains. That is not only for reasons of public health and decency (considerations which underlie the provisions of the Burial and Cremation Act 1964). The public interest is also engaged because in all societies and in all cultures the disposal of the dead is of great significance to the living and to the religious and cultural traditions to which the deceased and those who care about the deceased belong. Conflict about the disposal and treatment of the dead is inevitably distressing for all because it stirs deep feelings. Proper disposal of bodies engages the human rights to dignity, privacy and family.
In most cases, decisions as to interment or other disposal of human remains are taken by the immediate family of the deceased. Any disagreements between family members are either resolved or overtaken by the disposal achieved in result by those who carry the day. Those who prevail in fact may do so for a number of reasons: perhaps because they are deferred to on the basis of social or cultural ideas as to what is fitting (as is common in respect of the wishes of the spouse); perhaps because of their personal standing or the strength of their personalities; perhaps because they can invoke the deceased’s own wishes in support of their position; or perhaps because they can invoke the authority of cultural or religious tradition to which the deceased or the family belongs. Such outcome may entail the wishes of some family members being overborne. They may remain deeply unhappy and unreconciled to the result. Although in the present case cross-cultural issues have exacerbated the differences between family members of the deceased, it should be recognised that deep differences as to the disposal of the dead arise without any such cross-cultural dimension.
The appeal concerns a claim to the High Court by Denise Clarke for orders for the recovery by her of the body of her long-term partner, James Takamore. He was buried without her consent by members of his Whakatohea and Tuhoe family…
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- AGLC
- Takamore v Clarke [2012] NZSC 116
- Case
- [2012] NZSC 116
- Decision Date
CaseChat Overview and Summary
The legal issues at the heart of this case revolved around the interpretation and application of the priority rules for the grant of administration, as stipulated in the Administration Act 1969. Specifically, the court had to determine how these rules operate in the context of burial disputes and whether the proposed "first decider" rule, as suggested by Tipping, McGrath, and Blanchard JJ, could be applied to resolve such disputes efficiently. The court was also tasked with considering the overarching discretion of the Court under section 6(1) of the Administration Act 1969, which mandates the consideration of the rights of all persons interested in the estate of the deceased.
The court's reasoning concluded that the traditional priority rules for the grant of administration, particularly those relating to the disposition of property under a will, were not particularly useful in resolving burial disputes. Instead, the court emphasized the importance of the overarching discretion provided by section 6(1) of the Administration Act 1969. The court highlighted that in cases of intestacy, the priority rules would dictate that those beneficially interested in the estate should be granted administration, with their rights determined by a hierarchy. However, the court also acknowledged that in the absence of an actual or presumptive personal representative willing to make a burial decision, the default resolution mechanism must be the High Court. The proposed "first decider" rule could expedite certain burial disputes, but it would not apply in all cases and thus a default regime was necessary.
In conclusion, the court ruled that while the "first decider" rule could offer a pragmatic approach to some burial disputes, a default regime overseen by the High Court was essential for cases where no actual or presumptive personal representative was available to make a decision. The orders of the court aimed to provide clarity and guidance for future similar disputes, ensuring that burial arrangements could be made in a timely and legally sound manner.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The rules as to the priority of applicants for a grant of administration where the will is annexed operate by reference to how the property of the deceased has been disposed of under the will[283] and are thus unlikely to be of practical assistance in resolving a burial dispute. Where there is an intestacy, the priority rules provide for those interested in the estate to have the first priority, with their rights inter se determined in accordance with a hierarchy.[284] These rules are subject to the overarching operation of s 6(1) of the Administration Act 1969 which provides:6Discretion of Court as to person to whom administration is granted(1)In granting letters of administration with or without a will annexed, or an order to administer with or without a will annexed, in respect of the estate of any deceased person or any part thereof, the Court shall have regard to the rights of all persons interested in the estate of the deceased person or the proceeds of sale thereof, and, in particular, administration with a will annexed may be granted to a devisee or legatee; and any such administration may be limited in any way the Court thinks fit: Provided that, subject to the provisions of subsection (2) of this section, where the deceased died wholly intestate as to his estate, administration shall be granted to some one or more persons beneficially interested in the estate of the deceased, if they make an application for the purpose. (Emphasis added) The first decider rule proposed by Tipping, McGrath and Blanchard JJ provides a mechanism for prompt decisions to be made in respect of some burial disputes. Once the personal representative (actual or presumptive) has made a decision, arrangements for burial can be put in hand and, subject to a successful challenge in the High Court, can be implemented. Some disputes which might otherwise have required litigation will presumably be resolved quickly, informally and cheaply. Some of the considerations I am about to mention arise more acutely with the executor rule than in the case of the first decider rule proposed by Tipping, McGrath and Blanchard JJ. They are, however, material to the way a first decider rule would be likely to operate in practice. A first decider rule would not always apply. Many people die intestate. There may not be anyone prepared to apply for administration. The will may not be found in the immediate aftermath of the death. The nominated executor may not be able to be immediately located or may decline office. An executor who has accepted office may not be prepared to make a burial decision.[287] If there are an equal number of executors, they may disagree. So too might those appointed – or presumptively entitled to appointment – as administrators. There may be no funds in the estate. It follows that there has to be a default regime applicable to burial disputes where there is no actual or presumptive personal representative prepared to make a decision. This default regime must logically turn on resolution by the High Court. Recognising that there must be a default regime raises the question whether there needs to be, or should be, a separate regime where the actual or presumptive personal representative is prepared to assume the role of first decider.[287]In Keller v Keller [2007] VSC 118, (2007) 15 VR 667, the sole and independent executor declined to make a decision as to burial.