Chapter 19

Context to reform

Decision making and disputes

19.3In any decision-making process, there is a possibility for dispute, either about who should be the decision-maker or about the substance of the decision. This risk is present when decisions must be made upon the death of a person. Disputes may concern the funeral arrangements, where or how disposal of the body is carried out (burial or cremation) or how ashes are dealt with. These decisions may involve strong family emotions, leading to conflict over the choices that have been made.

19.4There is evidence that disputes in respect of funerals, burials and cremation have been increasing in recent years. The Funeral Directors Association of New Zealand told us that there are many more disputes among families than was the case in the past. Generally, these disputes are resolved without recourse to lawyers and the courts. However, there has been a noticeable increase in the number of such cases going to court. Virtually all the New Zealand decisions in this area have occurred in the last 20 years.

Takamore v Clarke Top

19.5Some of these disputes have a bicultural aspect where the values of tikanga Māori are significant. The most notable case in this respect is the lengthy legal proceedings arising from the burial dispute over the body of James Takamore. This case has been a key piece of the context to this review.

19.6Mr Takamore lived in Christchurch for over 20 years with his partner Ms Clarke, who is Pākehā, and their children. He was originally from the Bay of Plenty and was of Ngāi Tūhoe and Whakatōhea descent. He died unexpectedly in 2007. His partner and children decided to bury his body in a Christchurch cemetery.

19.7Members of Mr Takamore’s whānau, who still lived in the Bay of Plenty, travelled to Christchurch to argue for the right to take his body back to be buried in their family urupā in the Bay of Plenty. The process of arguing for this right is called tono and is a traditional part of tikanga in relation to death.

19.8The two families unsuccessfully discussed what should happen. One night, after Mr Takamore’s partner and children left the marae where the body was lying in state, the Bay of Plenty whānau took the body of Mr Takamore back to the Bay of Plenty. There, they buried it in the urupā in accordance with the tikanga observed by their hapū.

19.9Ms Clarke brought proceedings in the High Court for an order recognising her right to determine the burial location as she was the executor of Mr Takamore’s will. Mr Takamore’s sister, mother and brother defended the proceedings on the basis that Māori customary law should apply. Under Māori customary law, the decision as to burial was for the whānau pani (close family) and hapū (tribal sub-group) of the deceased.

19.10In the High Court, Fogarty J held that Ms Clarke, as executor of the will, had the right recognised under common law to choose the burial location of Mr Takamore’s body.380 Members of the Takamore whānau then appealed to the Court of Appeal, where three Court of Appeal judges unanimously dismissed the appeal and returned the matter to the High Court to deal with the question of remedy.381 Proceedings were then filed in the Supreme Court and were heard in 2012.382 The Supreme Court held, by a three to two majority, that if the deceased nominated an executor in their will, the named executor has the right to decide the deceased’s burial arrangements.383 When making that decision, the executor is required to take the views of the survivors and other relevant considerations into account.384
19.11It was reported in June 2015 that resolution of this dispute was imminent, following successful mediation between the two families.385 The details of the resolution have not yet been made public.
19.12The case attracted significant media attention and public interest because Mr Takamore’s body was removed contrary to the wishes of his partner and children, and the case raised some very difficult cultural issues. It threw light on a number of issues with the law governing how decisions are made post-death, both in relation to the decision-maker and the factors that should be taken into account.386 It raised questions about the appropriateness of the executor rule (the rule that the deceased’s executor decides the burial arrangements); the legal status of the deceased’s own wishes for burial; the effect of tikanga Māori on the law of burial and the law more generally; and the role of the court in determining burial disputes. It also revealed a number of uncertainties in the law in this area. We discuss the findings of the courts in more detail in Chapter 20.
19.13Aside from Takamore v Clarke, there have been very few court cases on burial disputes in New Zealand.387 Disputes over burial decisions are sporadically reported in the news media, including, for instance, the case of the pre-burial arrangements for the comedian Billy T James in 1993.388 However, of the 30,000 people who die each year, in the vast majority of cases, decisions are reached and disagreements resolved without the need for court intervention.

19.14However, the fact that only a small number of cases become public does not mean that the current law is providing the best guidance for how decisions should be made and disputes resolved. During this review, we were surprised by the number of personal stories conveyed to us concerning burial disputes that, while never taken before a court, caused significant difficulties for the parties involved. We received inquiries from members of the public who wanted advice on the law in this area. This and the lengthy and complex case of Takamore v Clarke suggest there are good grounds for examining whether the law governing post-death decisions about the body is serving its purposes.

Potential for future disputesTop

19.15We consider that disputes over these types of decisions are likely to become more common. Increasing cultural diversity, changing family dynamics and the complexity of these decisions mean that there is significant potential for family disagreement. The cultural, religious and ethnic demographics of New Zealand are changing, and there has been an increase in the number of inter-cultural partnerships and marriages. Different cultural norms and expectations may lead to different views about how the body should be treated after death.389
19.16In addition, social and family relationships are increasingly complex. Since 1983, roughly one-third of all marriages in New Zealand have been remarriages,390 and one of the key areas where one might expect to see disputes is between the deceased’s children from earlier and later relationships or the children from an earlier relationship and the surviving spouse. All this being the case, the law in this area must be clear, certain and fit for purpose.

A desire for increased individual controlTop

19.17Another reason to review the law in this area is the increasing value placed by our society on individual autonomy. Some people express a strong desire to determine how their body will be handled after death and have an expectation that these wishes will be given effect. American commentator Tanya Hernandez has described a “modern autonomy trajectory” with respect to decisions over the body.391 Advances in medical care mean that people have a greater say in the treatments and care they wish to receive when ill or dying. These technological and legal developments lend themselves towards an expectation of having individual control over one’s burial arrangements in a way that has not always been present in the law up to this point.

Tikanga MāoriTop

19.18One of the issues in Takamore v Clarke was how tikanga Māori should be given effect in burial decisions. Just as the common law has rules governing the treatment of a body after death, tikanga Māori also contains a set of norms and practices that regulate conduct towards a tūpāpaku in accordance with the custom of a particular iwi or hapū. Ultimately, the Supreme Court held that tikanga Māori is a value that should be taken into account where relevant to the burial decision. The Court also acknowledged the role of Māori customary law within the fabric of the common law.

19.19For the purposes of this review, we have considered whether a statute should affirm the position in the Supreme Court decision or whether an alternative approach should be adopted in relation to the role of tikanga in burial decisions. This is a particularly important area of the review because of the great significance placed on burial decisions in Māori customary law.

The position overseasTop

19.20Australia and the United States have both seen a much larger number of burial dispute cases go before the courts.392 A significant number of burial dispute cases have also been reported in Canada and England.393 Some of these countries have passed or have considered passing legislation to cover the making of burial decisions, raising the question of whether New Zealand should do the same.394
380Clarke v Takamore [2010] 2 NZLR 525 (HC) at [9].
381Takamore v Clarke [2011] NZCA 587, [2012] 1 NZLR 573 at [200].
382Takamore v Clarke (NZSC), above n 5.
383At [152] per Tipping, McGrath and Blanchard JJ. See also Williams v Williams (1882) 20 Ch D 659; Murdoch v Rhind [1945] NZLR 425 (SC).
384Takamore v Clarke (SC), above n 5, at [152] per Tipping, McGrath and Blanchard JJ.
385 Shane Cowlishaw and Deidre Mussen “James Takamore body-snatching resolution hopeful after successful mediation” (4 June 2015) Stuff <>.
386Takamore v Clarke (SC), above n 5.
387In only seven cases have the courts been asked to make orders for the burial arrangements of a deceased: Murdoch v Rhind, above n 383; Watene v Vercoe [1996] NZFLR 193 (FC); Tapora v Tapora CA206/96, 28 August 1996; Pauling v Williams CA69/00, 18 August 2000; Re JSB (A Child) [2010] 2 NZLR 236 (HC); Clarke v Takamore, above n 380; Waldron v Howick Funeral Home HC Auckland CIV–2010–404–005369, 17 August 2010. This does not include cases over other matters post-death, such as whether a body should be disinterred from its place of burial.
388For the Billy T James case, see Nin Tomas “Ownership of tupapaku” [2008] NZLJ 233; Awa v Independent News Auckland [1995] 3 NZLR 701 (HC). See also the discussion over the burial location of Prince Tui Teka in 1985, referred to in Tomas. See also various disputes reported in the media between 2007 and 2009: James Ihaka, Andrew Koubaridis and Juliet Rowan “Family say exhumation order never arrived” The New Zealand Herald (online ed, Gisborne, 15 December 2007); Waikato Times “‘Snatched’ body buried by family” Waikato Times (online ed, Waikato, 6 March 2008); Martin Van Beynen “Families settle row over final rites” (24 December 2009) Stuff <>; Southland Times “We’re not body snatchers: family” Southland Times (online ed, New Zealand, 14 March 2008).
389One of the key findings from the 2013 Census was that New Zealand’s population is becoming more ethnically diverse. Almost one in four people living in the Auckland region identified with one or more Asian ethnic groups. The Filipino population in New Zealand has more than tripled in size since 2001. The number of people who affiliate with a Christian religion has dropped since 2006, while the number of those affiliating with the Sikh religion has more than doubled. There has also been a large increase in the number of those who affiliate with the Hindu and Islam/Muslim religions. See Statistics New Zealand “2013 Census QuickStats about culture and identity” (15 April 2014) <>.
390Statistics New Zealand “Demographic Trends: 2012” (2012) <>.
391 Tanya Hernandez “The Property of death” (1999) 60 U Pitt L Rev 971 at 1022.
392For an overview of Australian litigation up to 2009, see Ian Freckleton “Disputed family claims to bury or cremate the dead” (2009) 17 JLM 178. For an idea of the range of cases in the United States, see Frances H Foster “Individualized justice in disputes over dead bodies” (2008) 61 V and L Rev 1351.
393For an older overview of Canadian law focusing on Ontario, see Zwicker and Sweatman “Who has the right to choose the deceased’s final resting place?” (2002) 22 Estates, Trusts and Pensions Journal 43. For the United Kingdom, see the discussion of the case law up to 2008 in Burrows v HM Coroner for Preston [2008] EWHC 1387, [2008] 2 FLR 1125 (QB).
394For a more detailed overview of the position in these other countries, see Law Commission, above n 8 from [14.49].