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. 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. 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.