Chapter 20
Current law and issues

The role of the High Court

20.13If a person seeks a court order to uphold or to challenge an executor’s right to decide, the proceedings are heard by the High Court as the court with jurisdiction over burial disputes.414
20.14The Court in Takamore v Clarke developed the High Court’s jurisdiction over burial disputes. It said that, if an executor makes a decision that an interested person is unhappy with, that person can appeal the decision to the High Court. In such cases, the High Court’s task is to assess the relevant viewpoints and circumstances and make its own decision as to “whether an applicant has established that the decision taken was not appropriate”.415 The implication is that, if the High Court concludes the executor’s decision was not the correct one, it could override it.416
20.15This is a departure from the accepted role of the courts prior to Takamore v Clarke. Up until then, courts had tended to accept that an executor who was available and willing to decide should be left to make the decision however they saw fit, and courts would usually not interfere with it.417

20.16Again, however, because no cases have since been heard in the High Court, it is unclear how the High Court will actually apply this new approach.

414Takamore v Clarke (SC), above n 5, at [7] per Elias CJ and [160] per McGrath J.
415At [162].
416At [171]–[172] per William Young J referring to this as a development of the “weak form version” of the executor rule. This contrasts with the “strong form” version of the rule in which the right is absolute and “it is not within the power of the court to control the means of disposition”: Privet v Vovk [2003] NSWSC 1038 (7 November 2003) at [17] per Bryson J, cited in Heather Conway and John Stannard “The honours of Hades: death, emotion and the law of burial disputes” (2011) 34(3) UNSWLJ 860 at 884.
417 The “strong form version” of the rule was applied in New Zealand by 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.”