Current law and issues
The executor rule
20.3The executor is the person named in the deceased’s will to administer the deceased’s property. The executor pays any debts of the deceased and distributes the rest of their property according to the directions in the will. The executor’s duties towards the deceased’s property are set out in legislation. However, alongside this, the executor also has the role of organising the disposal arrangements for the deceased body. We refer to this as the “executor rule”.
20.4The majority decision in Takamore v Clarke contains the most recent and most significant development of the executor rule in New Zealand. The effect of the judgment is that, in New Zealand:
- the executor has both a duty and a right to decide the manner and place of disposal of the deceased;
- the executor’s right only becomes operative when parties disagree over burial arrangements;
- when exercising the right, the executor must take into account the deceased’s wishes, the wishes of those close to the deceased, tikanga Māori, if relevant, and customary, cultural or religious preferences if these are raised by the deceased’s family or if they form part of the deceased’s heritage; and
- the executor is not required to seek out the views of others but must take them into account if communicated to him or her.
20.5The executor rule operates whether or not the executor is a family member of the deceased or had any kind of personal relationship with the deceased. In principle, then, a solicitor or other professional executor would have the duty and the right to decide the burial arrangements in a dispute over their deceased client. In practice, however, they may leave it to the family to decide.
20.6Interestingly, Elias CJ and William Young J, in separate minority opinions, differed on the role of the executor rule. They rejected the suggestion that the executor rule forms part of New Zealand law. They argued that, in a burial dispute, the executor has no greater right to decide than any other person who has an interest in the burial of the deceased. Rather, “the responsibility of burial is a shared responsibility and falls to be exercised according to the circumstances”. Elias CJ said that the High Court should be available to resolve disputes where necessary under its inherent jurisdiction.
20.7Having reached conflicting conclusions as to the existence of the executor rule at law, the Supreme Court judges went on to examine the facts of the case before them and determine whether Ms Clarke or Mr Takamore’s whānau were the appropriate ones to make the burial decision. Though Mr Takamore had named Ms Clarke as his executor, he had not set out any burial wishes in his will, and there was conflicting evidence as to his wishes.
20.8McGrath J recognised Ms Clarke’s legal right to decide, as executor, and went on to determine whether her decision to bury in Christchurch was appropriate. He assessed a range of relevant matters before concluding that Mr Takamore’s life choices, including living in Christchurch with his partner and children, carried the greatest weight and were determinative. Ms Clarke’s decision to bury in Christchurch reflected her own view and those of her children and was therefore appropriate and should be upheld.
20.9In contrast to the majority view, Elias CJ did not accept that Ms Clarke, as executor, had a prior legal right to decide, although she did find that, in this instance, Ms Clarke should determine where Mr Takamore was to be buried. She said:
Ms Clarke should be given the right to determine where Mr Takamore is to be. He made his life with her for more than twenty years and they have two children together. During their time together Kutarere was left behind. That may not have been Mr Takamore’s personal preference – it is impossible to know – but it was the choice he made in his life out of commitment to Ms Clarke and his children … [Ms Clarke’s] reluctance to agree to the burial at Kutarere is not therefore mere preference at the point of decision; it follows a course set by the way the couple lived.