Chapter 21
A statutory framework for burial decisions

Summary of the framework

21.27We have developed the proposed framework for burial decisions around three key questions. Each is summarised here and addressed in more detail in subsequent chapters.

Who makes the decision?

21.28The framework provides for a person to appoint a decision-maker to make decisions after their death about funeral arrangements, disposal of their body or how any remains should be dealt with. The appointed decision-maker is either an executor of the will or a new role of “deceased’s representative”.437 That person should have a statutory right to make these decisions and a duty to dispose of the body.

21.29If a deceased’s representative is appointed, that person will make decisions relating to the funeral, body and remains, leaving any executor to administer the estate.

21.30If a decision-maker is not appointed, every member of the deceased person’s family should have the power to make decisions about funeral arrangements, disposal of the body or how to deal with any remains. They should also have a duty to dispose of the body of the deceased person in certain circumstances.

What factors should they take into account?Top

21.31In making these post-death decisions, any of these decision-makers must give effect to any wishes the deceased person expressed in writing, unless the decision-maker is satisfied that there is a compelling reason not to do so. If the deceased person expressed their wishes but not in writing, they must be taken into account by the person making the relevant decisions.

21.32Decision-makers must take account of any views of the family when making these decisions. In particular, they must seek out the views of family members to the extent they consider practicable in the time available, giving particular priority to obtaining the view of any spouse. They must give preference to the views of those people closest to the deceased person, particularly any spouse.

21.33Decision-makers must also take account (where appropriate) of tikanga Māori and any religious, cultural and ethical beliefs or practices of the deceased or their family; and the likely size of the estate and its ability to cover the costs of the decisions relating to funeral arrangements, disposal of the body and dealing with any remains.

What court processes should be available to resolve disputes?Top

21.34We consider that burial disputes should be settled without court intervention wherever possible. This should be encouraged by supplying more information and training on burial disputes to community groups who are well placed to provide resolution services. It should be motivated by a statutory requirement to file a “genuine steps” statement before any court proceedings for burial disputes are commenced. That statement should outline the steps that have been taken to resolve the dispute and may be taken into account by the court when making orders.

21.35When it is necessary to resort to court resolution for burial disputes, application should be able to be made to the High Court, the Family Court or the Māori Land Court. The nature of the issues and other circumstances will determine which court is chosen. If the parties cannot agree on the court, the matter should be heard in the High Court.

21.36Courts should be required to deal with burial disputes with expediency. In making decisions, the courts must take account of any wishes of the deceased person; the views of the family; and tikanga or other cultural considerations.

437We have called this new role the “deceased’s representative”, but a better term, perhaps a Māori term, may be preferred. “Representative” is a general term, also in use in other contexts, and so may give rise to confusion. We have tried other terms such as “burial nominee” or “kaitiaki”, but neither term accurately reflects the role.