Chapter 20
Current law and issues

20.1In this chapter, we set out New Zealand’s current law on burial decisions and its main issues, as we see them, following our research and consultation.395 We also explain the Takamore v Clarke case in more depth.
20.2At present, much of the law governing post-death decisions is found in the common law—law made by the courts. The courts have established rules governing who should make post-death decisions and what matters they must take into account.396 The common law changes and develops as cases come before the courts to be decided. As we described earlier, the most recent common law development in New Zealand relating to the deceased and their executor is the Supreme Court decision in Takamore v Clarke.397 The Court, in that case, both confirmed and developed the law in this area.
395 For a more in-depth review, see chapter 14 of Law Commission, above n 8.
396 However, some specific matters relating to the administration of the deceased’s property are prescribed in the Administration Act 1969.
397 Takamore v Clarke (SC), above n 5.