Whose body is it anyway?
The need to get your funeral wishes stipulated in your Will.
What follows is an expensive, upsetting and lengthy battle which may have been avoided if Mr Takamore had included in his Will specific instructions as to where he wanted to be buried and if there had been better communication between the parties prior to his death.
Mr Takamore lived with Ms Clarke (a pakeha) and their children for 20 years in Christchurch. Upon his death, his body was taken by his sister and other members of his whanau and he was buried at his marae in the Bay of Plenty. The family cited Túhoe burial custom as giving them the right to take his body.
Ms Clarke issued proceedings in the High Court for the return of his body. The High Court held that Ms Clarke, as Executrix of Mr Takamore’s Will, was entitled to possession of his body and to make the final decision about his burial location. Mr Takamore’s sister appealed, arguing that in accordance with Túhoe burial custom his whanau was entitled to his body.
It is probably fair to say that Mr Takamore, in his wildest dreams, would never have anticipated that he would become the subject of proceedings in the Court of Appeal or that, after dying in 2007, in 2011 there would still be a dispute about his burial.
It is equally fair to say that both sides of this dispute would have suffered distress at having to bring these proceedings as well as the financial cost of doing so.
Ultimately, the sister’s appeal failed. Unfortunately, this is not where it ends for this family. While the Court of Appeal determined that Mr Takamore’s whanau did not have the right to take his body, Mr Takamore’s body now lies in land that is not under the control of any of the parties to the litigation and therefore, any Court Orders ordering the return of Mr Takamore’s body to Ms Clarke may not be enforceable. The parties have been encouraged by the Court of Appeal to try and resolve the matter amicably, otherwise they will need to return to the High Court.
Although Mr Takamore had made a Will, and recorded that he wished to be buried, he had not specified where. The Court of Appeal held that even when a deceased expressed burial wishes, it was not determinative of burial location either under the common law or Túhoe custom. However, the Court of Appeal held that where the wishes of the deceased’s family conflict with the wishes of the deceased then it would not be unreasonable of the Executor to bury the person in accordance with the deceased’s wishes. Therefore, if Mr Takamore had been more specific about where he wished to be buried then this may have assisted in a speedier resolution of this matter.
While it is not possible to completely eliminate the possibility of this type of conflict arising, it may also have assisted if Mr Takamore had communicated to his wider whanau his wishes.When giving instructions to us for preparation of a Will cultural issues may arise; be sure that you consider those issues and provide instructions accordingly. If appropriate, discuss those instructions with your family at the time you sign your Will with us.