Josephine Takamore v Denise Clarke and Nehuata Takamore & Donald Takamore - SC 131/2011
Summary
Civil Appeal – Customary Law – Approach to determining whether Tūhoe burial custom forms part of the common law – Whether the Court of Appeal majority erred in its analysis of the reasonableness of the Tū hoe custom – Whether the Court of Appeal majority was wrong to hold that the Tūhoe custom was insufficiently certain to form part of the common law – Whether the Court of Appeal majority was correct to hold that Tū hoe custom was a relevant cultural consideration for an executor or executrix where one or more of the whānau pani of the deceased is Tūhoe and the deceased is Tūhoe under Tūhoe custom – Whether the Court of Appeal minority judgment raised important issues about the approach to findings of fact in the High Court[2011] NZCA 587 CA 525/2009
Result
A The application for leave to appeal is granted.
B The approved grounds of appeal are whether the Court of Appeal was correct to hold that New Zealand law entitled the executrix to determine disposal of the body of the deceased and whether it was correct to hold that the executrix is entitled to take possession of the body of the deceased notwithstanding its burial.
B The approved grounds of appeal are whether the Court of Appeal was correct to hold that New Zealand law entitled the executrix to determine disposal of the body of the deceased and whether it was correct to hold that the executrix is entitled to take possession of the body of the deceased notwithstanding its burial.
28 March 2012
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A The appeal is dismissed.
B The first respondent is entitled to proceed under the exhumation licence to have Mr Takamore reburied in a place of her choosing.
C The matter is remitted back to the High Court in case any consequential orders are necessary.
D Costs are reserved.
18 December 2012
Additional Information
Hearing dates : 17 and 18 July 2012
Elias CJ, Tipping, McGrath, William Young, Blanchard JJ.