Fight over burial place settled after final appeal

SHANE COWLISHAW
Last updated 16:32 18/12/2012
BURIAL SAGA: James Takamore died of an aneurysm in August 2007.
BURIAL SAGA: James Takamore died of an aneurysm in August 2007.
CUSTOMARY PRACTICE: Josephine Takamore arrives at the Supreme Court in Wellington for the hearing on a continuing dispute about the burial of her brother James  by his Tuhoe relatives without his widow’s consent.
PHIL REID/Fairfax NZ
CUSTOMARY PRACTICE: Josephine Takamore arrives at the Supreme Court in Wellington for the hearing on a continuing dispute about the burial of her brother James by his Tuhoe relatives without his widow’s consent.
Denise Clarke
FAMILY: Denise Clarke in 2007 shortly after her partner, James Takamore died.

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After more than five years of arguing, accusations and court action, the final resting place of James Takamore has been decided.

The father-of-two died of an aneurysm in 2007 and was to be buried in Christchurch, where he had lived with Denise Clarke for nearly 20 years.

But his Tuhoe relatives had other plans and spirited his body to the Bay of Plenty where they buried him next to his father at Kutarere Marae, near Opotiki.

Clarke, who is executor of Takamore's estate, obtained a High Court judgement confirming her right to decide his burial place and ordering her partner's body be exhumed.

The decision was upheld in the Court of Appeal but Takamore's sister, Josephine Takamore, appealed against that decision on the grounds that Tuhoe tikanga, or customary protocol, should decide the location of burial.

In July a two-day Supreme Court hearing was held, with a decision being released this afternoon.

In the decision, Chief Justice Sian Elias said Josephine Takamore's appeal had been unanimously dismissed.

There was a common law rule under which the executor had both the right and duty to dispose of the body of a deceased person.

The rule became operative where there was no agreement among the family on what was to be done, where arrangements had broken down, or where nothing was happening.

Justice Elias said there were valid arguments for both sides, but Takamore's own life choices should also be taken into account.

"...weighing up the different and valid claims of the parties as best I can, I have concluded that Ms Clarke and her children should in the circumstances of the case be left to decide where Mr Takamore is to be buried."

'A HUGE RELIEF'

Denise Clarke is confident she could have her partner back in Christchurch by early next year.

Her lawyer Gary Knight  said she felt an "immense sense of relief" with the Supreme Court's decision.

"She feels like we're coming close to the end of a very long journey. It's a big step for us."

The next step in the process would be to speak with the Takamore family to see they would "work with us", Knight said.

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"They've got a lot to digest as well."

If the family would not co-operate, Knight would go to the Christchurch High Court for enforcement papers.

"It's going to take weeks rather than months either way. It's been a long process to get to this point but now we are there we can get it done fairly quickly," Knight said.

"We hope we could have Jim home by early 2013."

Only then would Clarke be able to truly move on, he said.

"We won't be celebrating, that's the wrong word. You don't celebrate a burial. But once he is home it will be the end of things for Denise."

"It is nice to have this result for her just before Christmas".

Knight said he had "been confident" of the result throughout the five year process.

However, he was "still getting to grips" with the decision and could not yet say whether it set a legal precedent.

"I haven't had a chance to sit down and read the ins and outs of it yet. I will have to sit down and have a read. I imagine the academics will have a field day with it".

Clarke wanted to thank the public for their support over the years, Knight said.

"It's been a huge comfort to her".

- The Dominion Post

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