19.21Before analysing the issues arising in relation to decisions about the body after death, it is perhaps helpful to set out an overview of our recommendations so that the following chapters are not read in isolation. We are proposing some significant changes to the common law in this area. It is important that the implications of those changes are well understood.
19.22We consider that, currently, the common law is inadequate in two respects. First, it does not require instructions expressed by the deceased person before their death to be carried out despite that generally being the public expectation. Second, the common law holds that, if there is a dispute within the bereaved family, the executor of the will has the right to make the decisions. We have found that this also does not meet public expectations for how these decisions should be made.
19.23Consequently, we have recommended that there should be new statutory provisions on this matter. Those provisions should require that, where a deceased person has expressed in writing their wishes relating to funeral arrangements, disposal of their body or the handling of their remains, the person making the decision about those matters must give effect to those wishes unless satisfied that there is a compelling reason not to do so. Where a deceased person has expressed such wishes but not in writing, they must be taken into account by the person making the relevant decisions.
19.24We consider that this new requirement will increase certainty after a death and decrease the likelihood of disputes arising. Perhaps most importantly, it will provide some assurance to a person that their wishes will be carried out. However, we also recognise that sometimes the wishes will not be carried out because they are impractical or irrational or there are countervailing considerations. In order to provide even greater assurance, we have also recommended that a person should be able to appoint a trusted “deceased’s representative” to make these decisions after their death. Because that person is trusted, when any countervailing considerations must be considered, they are more likely to prioritise the deceased person’s wishes.
19.25Despite these proposals to increase certainty after a death and decrease the likelihood of disputes, the possibility of irreconcilable disputes will remain. In those cases, the parties can currently ask the High Court to resolve the dispute. A third significant change proposed in this part of the Report is that, in future, the parties should be able to apply to the Family Court, the Māori Land Court or the High Court to resolve the dispute. Which court they choose will depend upon the nature of the issue and prevailing circumstances, including timeframes and financial considerations.