Burial battle may require High Court order

Denise Clarke, and her daughter Jenna, at their Christchurch home in 2009. Photo / Simon Baker

A High Court order enforcing the exhumation of a Christchurch man's body might be needed to finally return his body to his partner, after it was taken to Bay of Plenty by his family to be buried with his ancestors.

The Supreme Court yesterday dismissed a bid for James Takamore's body to be kept at the Bay of Plenty burial site, against has partner's wishes.

Mr Takamore was interred at a marae at Kutarere in accordance with tikanga, or Maori customs and tradition, after he died from an aneurism in 2007.

Since then Denise Clarke, his partner and executor of his will, has been in a legal battle to have his body returned to Christchurch, where he lived with her and their two children for 20 years.

Mr Takamore was originally from Taneatua in Bay of Plenty, and had returned to the North Island only twice in 20 years since moving to Christchurch.

He had specified in his will that he wanted to be buried, but did not say where.

Ms Clarke had intended for him to be buried in Christchurch, but before that could happen the Takamore family collected his body and buried it in Bay of Plenty.

Both the High Court and the Court of Appeal ruled it was unlawful for Mr Takamore's family to take his body, but his sister Josephine Takamore appealed to the Supreme Court.

The Supreme Court yesterday ruled in Ms Clarke's favour.

Ms Clarke's lawyer Gary Knight told Newstalk ZB today that the case might still have to go back to the High Court where an order to enforce the exhumation of Mr Takamore's body could be ordered.

"As far as we're concerned we've got a sufficiently clear mandate from the court that we are able to go back and carry out an exhumation process via the high court, if we can't do it by mutual agreement with the family."

It was not yet known whether the family would co-operate with Ms Clarke, Mr Knight said.

Ms Clarke yesterday said her reaction was "extreme relief" that the fight had finally come to an end after five years and four months.

She said the reburial would happen in a matter of weeks.

"I'm hoping, all going to plan, early next year. It won't be months, it'll be weeks. It's not going to drag on another year anyway."

The Supreme Court yesterday said there was "significant cross-cultural misunderstanding" between Ms Clarke and Mr Takamore's sister and extended whanau.

Three of the justices said there was common law rule under which personal representatives had both the right and duty to attend to disposal of the body of a dead person.

"The rule becomes operative where there is no agreement or acquiescence among the family on what is to be done, where arrangements have broken down, or where nothing is happening."

Mr Knight said the decision was "curiously cautious".

"It's probably left the role of executor weaker as a result of the decision than it was previously. It's given a supervisory role to the court whereas previously the executor's powers would have been considered all inclusive."