Contents

Chapter 22
Who makes the decisions?

The role of the family

22.33Family participation in the post-death arrangements is important for a number of reasons. A death breaks the living social ties between the deceased and their family. In making burial decisions, a family can lay claim to the identity of the deceased and, by doing so, can also reinforce its own identity. In tikanga Māori, burial decisions are decisions that affect not only the deceased’s survivors but also their ancestors and descendants. Many consider that meaningful involvement by the family in decision-making after death is an important part of mourning.447

22.34The appointment of a deceased’s representative and an executor are both voluntary. There will therefore be some cases where no-one has been appointed in a decision-making role, and the statute will need to provide a default mechanism for decisions to be made in these cases. We consider that, in such cases, decisions should be made by the family of the deceased. In practice, families make decisions in different ways depending on the relationship dynamics within the family, cultural background and pragmatic considerations such as who is most able to begin funeral arrangements. For example, in many families, the surviving spouse and adult children will have the primary role. For other families, including Māori, the decision is made collectively by a larger group. In some families, the deceased will have made their wishes known to the family before death (for example, by pre-purchasing a plot at a preferred cemetery), and the family will proceed to carry these out in a straightforward manner.

22.35The challenge in this review is to frame the statutory obligation to make decisions after death in a way that recognises the variety of ways New Zealand families are arranged and the variety of cultural expectations. We seek to create a reform that provides legal clarity without imposing a “one-size-fits-all” approach. Our proposal is to create a non-exclusive duty applicable to all relevant members of the family. This reflects the current practice whereby usually a particular person or a group of people will have primary responsibility for making arrangements after death. As discussed in the next chapter, decision-makers from within the family will be required to take account of certain matters, including the wishes of the deceased and the views of other family members as well as cultural factors including tikanga Māori. This means that the decision of family members, like the decision of representatives appointed by the deceased, is not unfettered. We expect that the non-exclusive duty provides the closest possible statutory reflection of how things currently operate in practice across New Zealand’s diverse family types.

22.36For completeness, we discuss two other options we considered by ultimately rejected. These are:

22.37These options reflect the different ways in which families make decisions. They also reflect the range of options that existing statutes use in relation to family decision-making. After exploring these options below, we then set out our preferred option (non-exclusive duty on all family members) in greater detail.

Statutory hierarchy setting out the priority of rights

22.38One option, discussed in Issues Paper 34, is a hierarchy of family members authorised to make the decisions. This involves setting out a list of family members in statute, ranked in order of priority according to who can make burial arrangements in the absence of an executor or deceased’s representative. The highest-ranked person on the list has the first right to decide. If they are not willing or available, the right passes to the next person on the list and so on. Some overseas jurisdictions have applied this approach as a means of identifying a priority decision-maker as a matter of law.448 The highest ranking on the list is usually the spouse or partner of the deceased, followed by an adult child of the deceased, followed by the parents and then siblings.449
22.39A statutory hierarchy explicitly sets out the legal entitlements of different family members in a burial dispute. It makes it relatively simple to identify who has the highest priority right to decide, though there will still be frequent cases where more than one person has an equal claim to decide, such as two or more adult children of a deceased or two or more siblings. In Takamore v Clarke, the Court considered that, in the absence of an executor, the person with the best claim to administer the estate would be treated as the decision-maker.450 This is a form of statutory hierarchy.
22.40A statutory hierarchy will not necessarily suit all disputes. It will not assist where the dispute is between people who have an equal ranking on the hierarchy, such as siblings.451 Some overseas statutory hierarchies contain quite detailed rules to address these situations. For example, some Canadian hierarchies provide that, where siblings are in dispute, the eldest has the right to decide.452
22.41There is a risk that a statutory hierarchy, while certain, is arbitrary and does not address the particular circumstances of the deceased, including cultural values. We note that this approach is not favoured in either the Human Tissue Act 2008 or the Coroners Act. The value of legal certainty must be balanced against the need for the law to respond to individual circumstances. Every burial dispute will raise unique facts and circumstances, some of which will require a more nuanced approach. A statutory hierarchy may lack the flexibility to address this. A hierarchy relies on a fixed ranking of relationships that may not reflect the relationships the deceased had in real life.453

A collective duty on the family as a wholeTop

22.42There is no definitive practice in New Zealand under which one family member will always make the burial arrangements. Certain people may play a particular role or occupy a special status, but that will differ depending on the family.454

22.43Under tikanga Māori, the decisions to be made after death are considered a matter for whānau and hapū rather than one particular person. The decisions are made collectively with a strong focus on consensus. There may be competing claims by different hapū with which the deceased was affiliated. The decision as to where the tūpāpaku should be buried provides an opportunity to strengthen ties of whakapapa, and the process of making a decision allows different claims to be considered.

22.44The submission of Te Rūnanga o Ngāti Whātua was strongly against the statutory hierarchy approach, describing it as:455

[A]bhorrent, not only to the principle of whakapapa, but to the universal need for surviving whānau members to find peace.

22.45Submitters from the Tangi Research Programme said the following about the use of a hierarchy:456

Concepts and processes such as relationships, family, decision-making and authority are culturally imbued and meanings can differ significantly across individuals, familial groups and cultures. As such the compilation or proposed reliance upon a pre-determined hierarchy of individuals is extremely problematic … it is appropriate such matters are considered on a case-by-case basis.

22.46We considered whether the statute should provide for the family of the deceased person, as a family unit, to have a collective decision-making duty. This would be the option that most closely reflects tikanga Māori. However, we are of the view that it would be too onerous for families from other cultural backgrounds to be required to make decisions in this manner.

A non-exclusive duty on family membersTop

22.47We consider that there is an alternative under which the statute provides a role for family decision-making with neither a hierarchy nor an obligation for the decision to be made collectively and by consensus. Under this approach, no family member would have priority rights, but all members of a deceased’s family would have a power to act either on their own or by consensus with other family members. The statute would set down some minimum requirements as to how the power should be exercised.

22.48We propose that every family member of a deceased person should individually have all powers necessary to make decisions about funeral arrangements, disposal of the body or how to deal with any remains and should have a duty to dispose of the body of the deceased person in the following circumstances:

22.49We consider that this approach best enables the common practice under which the spouse or adult children step forward and make the decisions. Under this approach, if the deceased person has not appointed a decision-maker, the spouse or adult children may step forward, make decisions and instruct funeral service providers. The funeral service provider can rely on those instructions in the absence of knowledge of any challenge to those instructions from other family members.457 If the spouse or adult children do not undertake this role, other family members also have the right and duty to do so.

22.50We suggest that a broad definition of family that is inclusive of the range of family relationships is appropriate. A broad definition also leaves space for a conception of family that aligns with Māori thinking.

22.51The definition should encompass a biological, legal or psychological relationship, and it must also acknowledge a culturally recognised family group. This is consistent with the approach taken by existing statutes, including the Children, Young Persons and Their Families Act 1989 and the Human Tissues Act 2008. We suggest that burials legislation adopt a similar approach and define “family member” in such a way as to include:

22.52With reference to tikanga, the effect of this proposed framework will be that, if a Māori person wishes that decisions after their death be made according to tikanga, that person may appoint a deceased’s representative that they trust to ensure decisions are made in that way. Alternatively, they may express their wishes in writing. However, if they do neither of these things, decisions will be made by their family (which is broadly defined) with tikanga being one relevant factor and with particular significance being given to the views of any spouse. We acknowledge that this framework does not expressly recognise burial decisions based on tikanga in the sense that those principles should operate independently of any individual’s expressed desire. We have instead created a space for an individual to express their wish that decisions be made in accordance with tikanga. We consider that, while this proposal may not satisfy everyone, it is a workable accommodation between legal certainty, individual autonomy and the ongoing role of tikanga in burial decisions.

Recommendation

R109 The statute should provide that every member of the deceased person’s family should have all powers necessary to make decisions about funeral arrangements, disposal of the body or how to deal with any remains and should have a duty to dispose of the body of the deceased person in the event that:
  • there is no deceased’s representative or executor or that person fails to fulfil their role;
  • it is reasonably practicable for that family member to do so;
  • it is appropriate with regard to the relationship between the deceased and that family member; and
  • there is no other reason why that family member should be exempt from the duty.
447McManus, above n 435.
448See the legislation of Alberta, British Columbia, Saskatchewan, and the legislation of numerous American states. No Australian states have codified burial decision rights into statute, although the Queensland Law Reform Commission recommended Queensland should do so in 2011: Queensland Law Reform Commission A Review of the Law in Relation to the Final Disposal of a Dead Body (QLRC R69, 2011).
449After that, the order varies slightly between jurisdictions but follows a broadly similar pattern that is based on strength of kinship links with the deceased.
450Takamore v Clarke (SC), above n 5, at [145]–[146].
451 See, for example, Leeburn v Derndorfer [2004] VSC 172, (2004) 14 VR 100.
452 See, for example, General Regulation to Funeral Services Act, Alberta Regulation 226/98, reg 36(2). In contrast, the proposal of the Queensland Law Reform Commission was that, if the right to control disposal is held by more than one person, they must exercise it jointly: Queensland Law Reform Commission, above n 448, at [6]–[13].
453 Foster, above n 392, at 1369.
454 Ruth McManus notes that grief is “historically specific and culturally patterned” and will be experienced uniquely and intensely by each individual within a given culture: McManus, above n 435, at 129. Some New Zealand case studies give an idea of the diversity in how decisions are made – see, for example, the case study of Rose and her whānau in Nikora et al “Final arrangements following Death: Māori Indigenous Decision Making and Tangi” and the case study in Ministry of Justice He Hinatore ki te Ao Māori: A glimpse into the Māori world (Ministry of Justice, Wellington, 2001) at 93.
455 Te Rūnanga o Ngāti Whātua is the representative body for Ngāti Whātua.
456 The Tangi Research Programme is being undertaken by a group of researchers at the University of Waikato. The work concerns all aspects of traditional and contemporary death practices that involve Māori. They are funded by Royal Society of New Zealand’s Marsden Fund and Ngā Pae o Te Māramatanga, the Māori Centre of Research Excellence.
457We further discuss the funeral service provider’s liability in accepting instructions below.