Chapter 20
Current law and issues

Where there is no executor

20.11Of the small number of cases in which the courts have been asked to determine who has the right to decide the manner or location of disposal of the deceased body, all have involved a clearly nominated executor.411 None have concerned a deceased person who failed to nominate an executor or died without a will. Therefore, the law on this is unclear in New Zealand.
20.12However, the Court in Takamore v Clarke considered what the legal position should be if a dispute comes before the High Court in which the deceased did not leave a will that named an executor. McGrath J suggested that, in such cases, the court should recognise the rights of the person who has the best claim to administer the deceased’s estate under the rules of succession law.412 No cases have been heard since Takamore v Clarke, so it is unclear how the High Court will actually apply this approach. However, it reflects the existing English common law.413
411In Murdoch v Rhind, above n 383, the executor was the deceased’s brother; in Takamore v Clarke (SC), above n 5, the executor was Mr Takamore’s partner Denise Clarke.
412 Takamore v Clarke (SC), above n 5, at [145].
413 Burrows, above n 393, at [13]–[14].