22.4As set out in the previous chapter, the common law position in many Commonwealth jurisdictions and the United States is that the executor has the right and duty to make decisions in respect to the funeral arrangements, burial or cremation and other related matters.
22.5In the section above, we suggested that there should be a new role of “deceased’s representative” who is appointed for the sole purpose of making decisions after death about funeral arrangements, disposal of the body and how to deal with any remains. However, this appointment will be optional. If the deceased has a will and does not take the additional step of appointing a representative, the executor will have the decision-making role. This is substantially similar to the status quo, although as explored in the next chapter, the executor will be exercising this decision-making power under a statutory power and must take account of the same factors as the deceased’s representative.
22.6In practice, the executor generally has no significant role in making decisions after death as these are usually made by the deceased’s loved ones by consensus. The executor is able to defer to the collective decision of the family and need not step in unless called upon to do so. It is only where consensus fails that an executor may be called upon.
22.7This means that, in practice, the role of the executor in making funeral, burial and other related decisions will only be invoked if the family is unable to agree on such arrangements. We consider that this is appropriate and should be reflected in the statute given the executor is appointed primarily for the purpose of administering the will and, in most cases, there is no reason to interfere with the family making decisions and arrangements after death. However, there is a strong rationale in preserving this function in relation to arrangements for the body as it ultimately provides certainty as to who the decision-maker is in the event that the family is unable to make the funeral decisions and other decisions. Third parties such as funeral directors can also rely on the fact that they have recourse to an identified person who has the ultimate responsibility to make funeral decisions.
22.8This statutory affirmation of the executor rule combined with the introduction of a deceased’s representative will ensure that there is certainty around decision-making. This was a key concern of many submitters, particularly within the funeral industry. The proposals will make it clear who the decision-maker is in the event that funeral and burial decisions are not being made or when there is conflict over who has the right to make these decisions.
R104 The statute should provide that, in the event that the family is unable to agree on the funeral arrangements or disposal of the body or any remains, the executor should have the right to make these decisions and should have a duty to dispose of the body. This right and duty is subject to the right and duty of the deceased’s representative, if one is appointed.