Responding to Morgan

Morgan Godfery blogged a response to me on the Takamore case. He said:

There is a clash of laws. In New Zealand, and elsewhere, the common law position is that the executrix of the will (Miss Clarke) will prevail. Under Maori law, a majority opinion in the whanau will prevail. The wishes of the deceased and the deceased’ partner are, in most cases, subordinate to the wishes of the wider whanau.

The question then is, what law should prevail? In this particular case, I am comfortable with the common law position (or the western position) prevailing. Why? Well, because the deceased made it clear he wanted to lay in Otautahi (Christchurch) as did his children. However, in a situation where there is no explicit wish and the deceased is Maori, I think Maori law must prevail. These situations are rare and should be decided on a case by case basis.

I’m not necessarily against the wider whanau deciding, if there is no explicit wish from the deceased. I am very firm that the explicit wishes of the deceased should be paramount.

However I believe good laws deliver certainty.  People should know where they stand under the law, so they don’t break then. And this is where a law that say the wishes of a majority opinion in the whanau will decide, has problems. Who decides who counts in the whanau? Does an uncle or aunt count? How about cousins? Do children and partners get the same say as a second cousin? Do only Maori members of the whanau count? Does that mean the Pakeha partner doesn’t even get a vote?

If one seriously wants customary law to prevail, then you need to define it better. If you do not, then I think that significantly increase the number of disputes and potential for unilateral action.