Witehira v Ram
[2020] NZHC 2326
•8 September 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2020-404-1452
[2020] NZHC 2326
UNDER the Administration Act 1969 IN THE MATTER
of an application for interim injunction
BETWEEN
FREDA ELLEN WITEHIRA
Applicant
AND
LYNNE RAM
Respondent
Hearing: 3, 8 September 2020 (by telephone) Counsel:
Q Duff for Applicant
S Foliaki for Respondent
Judgment:
8 September 2020
JUDGMENT OF VENNING J
This judgment was delivered by me on 8 September 2020 at 2.15 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Mātai Chambers, Auckland
Community Law South, Auckland
Counsel: Q Duff, Auckland
WITEHIRA v RAM [2020] NZHC 2326 [8 September 2020]
[1] Tura-Maria Witehira died on 23 August 2020. She was 16 years old. Unfortunately her family members are unable to agree on how her body is to be dealt with.
[2] Tura-Maria’s birth mother, Freda Ellen Witehira, applies for the following orders:
(a)an interim injunction preventing disposal of Tura-Maria’s body until
further order of the Court;
(b)appointing a neutral administrator of her estate for the purposes of:
[i]consulting with the parties in an effort to reach agreement on the manner in which the body is to be disposed; and
[ii]if no agreement can be reached to make a decision on the manner in which the body is to be disposed of having due regard for the views of all immediate family members and to the relevant cultural or religious precepts that apply.
[3] The application was made without notice but was served on Tura-Maria’s grandmother, Lynne Ram, who has had care of Tura-Maria for years, on a Pickwick basis.
[4] The Court convened a telephone conference on 3 September 2020. Ms Ram and her son and daughter attended. I repeat the following paragraphs from that minute which the Court issued following the conference. The minute set out the background to the matters discussed at that conference.
[2] Tura-Maria died on 26 August 2020 shortly before her 16th birthday.1 Freda is her birth mother. Lynne Ram is Tura-Maria’s paternal grandmother. Lynne and her whanau wish to cremate Tura-Maria’s body. Freda wishes for Tura-Maria’s body to be buried in Kaikohe.
1 That was incorrect. It was based on Freda’s evidence that Tura-Maria was born on 10 September 2004, and had died on 26 August, but Tura-Maria actually turned 16 on 10 July 2020 and died on 23 August 2020.
[3] The Court convened a teleconference. Mr Duff attended the conference on behalf of Freda. Freda is presently an inmate at Auckland Women’s Regional Corrections Facility facing a charge of murder. Her trial is scheduled for November this year.
[4] Lynne attended the teleconference in person supported by her daughter and son. During the course of the conference Lynne’s family confirmed that Tura-Maria has been in the primary care of Lynne since she was approximately 18 months old. There is a shared guardianship arrangement between Lynne and Tura-Maria’s birth parents. Tura-Maria had minimal contact with Freda and her family. To the extent she showed interest in contacting them her principal contact was with her half-sister, Tiania.
[5] Importantly, the Court was advised that Tura-Maria had discussed issues with Lynne’s family and had made it clear to them that in the event of her death she did not want to be buried. Lynne’s family wished to respect her wishes. The Court was also told that Tura-Maria’s father, who is in Germany, is supportive of Tura-Maria’s wish to be cremated.
[6] In light of the discussion during the telephone conference matters were left on the following basis:
(a)Lynne and her family agree in principle to a two hour window/attendance by Freda at the funeral home for Freda to farewell Tura-Maria. It is intended that if at all possible that take place on Monday, 7 September 2020. The practical arrangements for that are to be discussed directly by telephone between Mr Duff and Lynne’s family;
(b)in light of the information conveyed regarding Tura-Maria’s wish to be cremated rather than buried Mr Duff is to take further instructions from Freda about that issue; and
(c)no further steps to deal with Tura-Maria’s body will be taken in the meantime.
[7] The Court will resume a telephone conference with the parties at 9.00 am on Tuesday, 8 September 2020 to review the position.
[5] At the resumed teleconference on 8 September 2020 Mr Foliaki appeared on behalf of Ms Ram. Mr Foliaki had also filed affidavits by Ms Ram and her daughter Turamaria Julia Haare (Julia).
[6] Mrs Ram opposes the application for injunction and the orders sought on the grounds:
(a)there is no legal reason to prevent the cremation;
(b)two of Tura-Maria’s guardians consent to the cremation;
(c)Tura-Maria wished to be cremated;
(d)Tura-Maria’s body has lain in state for a number of days;
(e)ongoing costs are being incurred.
[7] In their affidavits, Ms Ram and Julia confirmed the matters referred to in the minute and provided more detail about the circumstances leading to Tura-Maria’s death.
[8] While Mr Duff reported that Freda’s visit to the funeral home to farewell Tura- Maria went well and she now does not actively oppose the cremation of Tura-Maria’s body, an issue still remains as to how the ashes are to be dealt with.
[9] Although there was a discussion during the resumed hearing on 8 September about the remaining issues, no resolution was reached. The Ram family did confirm that, rather than divide up Tura-Maria’s ashes as Freda wishes, they would agree to providing Freda with a lock of her hair.
[10] Given that Tura-Maria died on 23 August, resolution is required. The Court has to deal with the application on the basis of the information currently before it. The application seeks interim injunctive relief and other orders. The orders, including the appointment of a neutral administrator, would ultimately require substantive proceedings to be filed. However, given the pressure of time, I deal with both applications on the basis that they are made under r 7.53, High Court Rules 2016 and that if necessary, a substantive proceeding would be commenced to support any orders the Court makes.
Discussion
[11]The following considerations arise on an application for interim injunction:
(a)whether the applicant, in this case Freda, can establish a serious question to be tried?
(b)the balance of convenience, which requires consideration of the impact on the parties if granting of, and the refusal of an order; and
(c)an assessment of the overall justice of the position.
Serious question
[12] The first issue involves consideration of whether Freda can establish a serious question to be tried, which in this case is related to her standing to seek the orders in respect of Tura-Maria’s body.
[13] An executor of a deceased person has first rights to custody of the body and has a duty to either cremate or bury it. The manner of dealing with the body is at the discretion of the executor, although in practice executors consider the wishes of the immediate family and can leave and make arrangements if they appear to be agreed. The executor’s powers become operative if there is no agreement as to what is to be done or arrangements had to be broken down or nothing was happening. Executors are required to consider tikanga Maori and other important cultural, spiritual and religious values where they form part of the heritage of the deceased.2
[14] Tura-Maria died without leaving a will. There is no executor. In an intestacy such as in this case, priorities for the right to apply for letters of administration are fixed by r 27.35(3) and (4) and s 6 of the Administration Act 1969 (the Act).
[15] Under r 27.35(4) Freda would be entitled to a grant of administration in priority to Lynne as Tura-Maria’s grandmother. However, r 27.35 is subject to s 6 of the Act.
[16]The relevant provisions of s 6 of the Act provide:
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
2 Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733. See also the discussion in Re JSB (A Child) [2010] 2 NZLR 236.
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), where the deceased died wholly intestate as to his or her estate, administration shall be granted to some 1 or more persons beneficially interested in the estate of the deceased, if they make an application for the purpose.
(2)Where by reason of the insolvency of the estate or other special circumstances the court thinks it necessary or expedient to do so, it may—
(a)grant administration to such person or persons as it thinks expedient notwithstanding that some other person is appointed an executor or that, apart from this subsection, some other person would by law be entitled to a grant of administration:
(b)grant probate to 1 or more of the executors appointed by a will, notwithstanding that some other person or persons may also be appointed as an executor or executors.
(3)A grant may be made under subsection (2) notwithstanding that any person excluded from the grant would be competent to take it.
…
[17] As Freda is a party who is prima facie entitled to apply for letters of administration she satisfies the Court there is a serious question to be tried that she should have the right to determine the means of dealing with Tura-Maria’s body.
Balance of convenience
[18]I understood from Mr Duff that Freda no longer opposes the cremation of Tura-
Maria’s body but the issue now is how her ashes are to be dealt with.
[19] Freda wishes Tura-Maria’s body (or now at least part of her ashes) to be buried according to the tikanga of her iwi/hapu, which would see her buried in Mataraua, Kaikohe.
[20] Lynne and her whanau would like to cremate Tura-Maria and deal with her wishes in accordance with Tura-Maria’s expressed wishes.
[21] Freda has proposed the appointment of an independent administrator to consult with the parties to reach agreement or, if no agreement is made, to make a decision on the manner in which the body, (which will be the ashes) are to be disposed of.3 The parties have had the opportunity to resolve matters themselves. There have been discussions recently, particularly since the issue of these proceedings. As a result, Lynne and her family agreed to Freda attending the funeral home to farewell Tura- Maria. They also agree to providing Freda with a lock of Tura-Maria’s hear, a photo album of her life and a video of her funeral service (which Freda was not able to attend as she was in custody). They do not agree to dividing her ashes as they consider that offensive and contrary to Tura-Maria’s wishes.
[22] The matter is pressing. A decision has to be made given Tura-Maria died on 23 August 2020. There is little point in the parties incurring the costs and additional delay and stress that would be associated with appointing another person to negotiate with the parties given their currently expressed positions reached after direct discussion and dealing through counsel, and given the need to deal with Tura-Maria’s body.
[23] While under r 27.35 Freda would have priority over Lynne in relation to appointment as administrator and therefore would have the right to make decisions as to the disposal of Tura-Maria’s remains, the rule is subject to s 6 of the Act. Sections 6(2) and s 6(4) of the Act in particular are applicable. In the special circumstances of this case the Court considers that if an application were made by Lynne for administration, it would be expedient to grant administration to her in preference to Freda, notwithstanding that Freda would normally be entitled to a grant of administration in priority to her.
[24] Although Freda is Tura-Maria’s natural mother, Tura-Maria has been in the care and custody of Lynne from the age of 18 months. Lynne was made her guardian on 28 June 2006. Tura-Maria became a part of Lynne’s whanau. She lived with them for all her life, until she turned 16 in July this year. There is hearsay evidence from Lynne and Julia that Tura-Maria’s father (Lynne’s son) supports the cremation and
3 As noted, the appointment of an administrator would require the issue of appropriate proceedings.
also that cremation was Tura-Maria’s personal wish and that she wished her ashes to be disposed of as Lynne has described.4
[25] Freda’s circumstances do not support her claim. While she says she would like Tura-Maria to be buried according to the tikanga of her iwi/hapu, she gives no evidence of her connection with her iwi/hapu or heritage. As noted, she has not sought to engage Tura-Maria in her iwi/hapu during her life. Freda had no or little contact with and no relationship with Tura-Maria since she and Tura-Maria’s father left her with Lynne as an infant. Also, Freda faces the serious charge of murder and is for trial in November this year. Her custodial situation makes it difficult for her to act practically in person.
[26] In the circumstances the factual background and practical situation support the conclusion that cremation is the appropriate means of disposal of Tura-Maria’s body. It will respect her wishes.
[27] Having regard to the evidence before the Court and the respective competency and abilities of Freda and Lynne, their ability to act responsibly and take the necessary steps to honour Tura-Maria’s body, and taking into account Freda and Lynne’s rights, the Court is satisfied that the balance of convenience does not favour the injunctive and other orders sought by Freda.
Overall justice
[28] An assessment of the overall justice on the facts of this case supports the conclusion reached in the balance of convenience, namely that Tura-Maria’s body should be cremated and dealt with according to her wishes and the wishes of Lynne’s family who have had care of Tura-Maria for over 14 years.
Result
[29] For those reasons the application for injunction and associated orders is dismissed.
4 The hearsay evidence is admissible on an application such as this: Evidence Act 2006, ss 18, 20; HCR 7.29 and 9.76.
[30] The practical result is that, while there are no letters of administration, Tura- Maria’s body will be disposed of by Lynne and her whanau who presently have physical custody and responsibility for her body, in accordance with Tura-Maria’s wishes. I do however, record their agreement to provide the lock of hair and other matters to Freda. That could be arranged with the assistance of counsel.
Costs
[31]There is no order for costs.
Venning J