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.
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”. The implication is that, if the High Court concludes the executor’s decision was not the correct one, it could override it.
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.
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.