Final burial appeal dismissed

SHANE COWLISHAW AND ANNA TURNER
Last updated 16:22 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.

Relevant offers

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.

His Tuhoe relatives had other plans and took 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 judgment 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 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 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," she said.

Clarke was confident she could have her partner's body back in Christchurch by early next year, her lawyer said this afternoon.

Gary Knight told The Press that Clarke felt an "immense sense of relief" with the 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 whether they would "work with us", he said.

Ad Feedback

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

Knight said that if the family would not co-operate he would go to the High Court in Christchurch 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," he said.

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

Only then would Clarke be able to 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," he said.

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

Knight said he had been confident of the result during 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

Special offers
Opinion poll

Have you seen rats on your property?

Yes

No

Vote Result

Related story: Does Christchurch have a rat problem?

Featured Promotions

Sponsored Content

Then and Now