Chapter 20
Current law and issues

Issues raised by the current law

20.17In this section, we set out the issues with the current law, drawing on views expressed to us in consultation.

The role of the executor

20.18One of the most significant issues with the law is the role played by the executor in the disposal arrangements. The executor’s core role is foremost to administer the deceased’s property. It can be argued that tying the executor role to the making of burial decisions adds unnecessary complexity.418

20.19The office of executor is mainly an administrative one, and for that reason, a person might appoint a solicitor as their executor or someone chosen for their business acumen. Thus, there will be times when the executor is not related to or close to the deceased but has the legal right to decide the burial arrangements. Many people we spoke to found this odd or were surprised that someone who did not necessarily know the deceased well should be in that position as a matter of law. An executor that is not a family member will not necessarily be in a good position to take into account family dynamics, family relationships and family-based discussion.

20.20The identity of the executor may not be known at the time of burial because it usually takes time to find the latest copy of the will, and there may be legal questions about probate that need to be resolved in court. The executor may not be known until days or even weeks after burial has taken place. This scenario undermines the executor rule and exposes the burial arrangements of the deceased to a challenge by the executor after the fact.

20.21Another difficulty is that many New Zealanders die without ever having nominated an executor. That will be the case for children but also for younger generations who have few assets and see no need for a will. The executor rule cannot apply in those situations, a point noted by the New Zealand Law Society in its submission.419
20.22Some of the funeral directors we consulted supported the executor rule because it gives them certainty that they are dealing with the person who has legal authority to make the decision and who is also financially liable for covering the arrangements.420 However, it is not clear whether funeral directors ask to see evidence of the executorship from those they deal with or whether they are under an obligation to do so. According to the joint submission of the Funeral Directors Association of New Zealand and the New Zealand Embalmers Association, the executor is often not known at the time of making the funeral arrangements even though, legally, the executor is the appropriate person for the funeral director to deal with.
20.23Nor is the law as to the executor’s liability for funeral arrangements particularly clear. It is accepted and well established that an executor who organises the burial arrangements is liable and can be reimbursed from the estate,421 but it is unclear whether an executor is liable where he or she did not arrange the burial, particularly where there are no assets in the estate to cover the costs.422

The right to decideTop

20.24In Issues Paper 34, we asked whether it is artificial or inappropriate for only one person to have a right to decide burial arrangements, as is currently the position under common law. It is more likely that the role of making burial decisions will fall on several family members and will be done in a way that suits each particular family group, informed by family dynamics and practicalities, including the cost of the arrangements. An individually exercisable right of decision over burial arrangements may not reflect reality.

20.25During our consultation, we encountered some division of views on these points. Many people we spoke to strongly supported a decision-making right that can be exercised by a specific person, and often they said this should be the spouse or partner of the deceased. It was also noted that having a single decision-maker will increase legal certainty.

20.26Others took a broader view. Some submitters, including from the funeral sector, focused on the family’s need to grieve and said that “families need to negotiate” to reach a decision.

20.27Some submitters made the point that a law by which a single person has a right to make the burial decisions is directly contrary to tikanga. In Māori thinking, the decision is normally reached by way of discussion and debate among the members of the deceased’s hapū.

Binding burial directionsTop

20.28Issues Paper 34 also asked whether the law should provide for an individual to leave binding burial directions. At present, the executor represents the deceased’s interests when making the decisions, but the deceased does not have a right to decide.423 We asked whether this should be replaced by a rule in which the deceased’s burial directions are binding.424 Some legal scholars have argued in favour of a binding burial directions approach on the basis that it recognises the deceased’s autonomy.425

20.29Again, opinions on this point were divided. Many submitters singled out the deceased’s autonomy as an important value that should be respected in the law, but most also recognised that it will sometimes be appropriate for the deceased’s wishes to give way to or at least accommodate other, stronger interests. As one submitter from the funeral sector said, it should be everyone’s right to have their clearly expressed wishes respected, but it will not always be possible to follow those wishes completely. A possible example is where the amount of money required to carry out the deceased’s burial wishes will exhaust the estate and leave no money for dependent survivors of the deceased.

Clarity and accessibility of the lawTop

20.30The law on this issue is difficult for the general public to access. The rules are found in judicial decisions from a range of different common law countries, some of which date back to the 19th century.426 Many people we met in public meetings did not know that the executor rule exists, for example. Most people expected that, if they had included burial directions in their will, these had some kind of formal legal status in and of themselves.

20.31There is also an issue of clarity. Takamore v Clarke has clarified many aspects of New Zealand common law on post-death decision-making. Equally, however, many aspects remain unclear. The High Court has not yet applied the new approach set down by the Supreme Court. It is unclear how the executor will take into account the views of the family and, where appropriate, the role of tikanga. All five judges dealt with these issues, with considerable overlap. The effect is that there will be some uncertainty over exactly how that approach will be applied, a point observed by the New Zealand Law Society in its submission.

The High Court’s roleTop

20.32The role of the High Court is to assess whether an executor’s decision is appropriate. In doing so, it will need to consider evidence of a cultural, religious and personal nature, such as the choices the deceased person made in life and the closeness of his or her relationships with others. The Court will be asked to make orders not only as to who should control burial but also how it should be carried out.427
20.33It has been suggested that, in burial dispute cases, these kinds of decisions fall outside the “judicial comfort zone” of most common law judges.428 Like all traditional common law courts, the High Court relies on an adversarial approach in which the two sides essentially argue in front of the Court to demonstrate the strength of their case. The Court does not generally make decisions on behalf of people but rather states how the law applies to the decisions people make and to their conduct.429

20.34In addition, the High Court proceedings are quite expensive and will not be affordable for many families. However, the High Court does have the capacity to deal quickly with issues, particularly where injunctive relief is sought. This is a valuable attribute, particularly if there is a need to store a body while awaiting court orders.

20.35Burial decisions are of such import and have such significance that there will be times when the parties will need to argue their case in a judicial forum before an impartial adjudicator.430 However, the High Court may not always be the best place for that. We raised this matter in Issues Paper 34 and asked whether submitters would support the Family Court being the primary court with jurisdiction over burial decisions.431 Of all the proposals suggested in that Issues Paper, this proposal received the strongest support from submitters.
418Law Commission, above n 8, at [15.13]–[15.18].
419 The common law has developed an approach for dealing with these kinds of disputes, which is to identify the person who has the best right to administer the estate under statutory succession laws and to treat that person as having the right to dispose of the body: see Law Commission, above n 8, at [14.67]–[14.71]. This approach was supported by the majority in Takamore v Clarke (SC), above n 5, at [143]–[148], but it has not yet been applied in New Zealand common law.
420The executor can then reimburse themselves from the estate: see Public Trustee v Loasby (1908) 27 NZLR 801 (SC).
421 Loasby, above n 420.
422 See Public Trustee v Kapiti Coast Funeral Home Ltd [2004] 3 NZLR 560 (HC).
423Rosalind Atherton “Who owns your body?” (2003) 77 ALJ 178 at 188.
424Law Commission, above n 8, at [16.58]–[16.75].
425Heather Conway “Burial instructions and the governance of death” (2012) 12 OUCLJ 59; Remigius Nmadi Nwabueze “Legal control of burial rights” (2013) 2 CJICL 196.
426 For example, Williams v Williams, above n 383, said to be the source of the executor’s common law rights, was decided in 1882. The origin case for the principle that there is no property in a body is Hayne’s Case (1614) 17 ER 1389.
427 Takamore v Clarke (SC), above n 5, at [91] per Elias CJ.
428 Conway and Stannard, above n 416, at 889.
429 See the approach of Northcroft J in Murdoch v Rhind, above n 383, at 427: “It is not the function of the Court to say how the body is to be disposed of. I do no more than pronounce, as I think it is my duty in law to pronounce, that it is for the executor to decide that question.”
430 Takamore v Clarke (SC), above n 5, at [84]–[86] per Elias CJ.
431 Law Commission, above n 8, at 227.