Contents

Chapter 23
Factors to be taken into account

23.1In the preceding chapter, we proposed that the law should recognise a wider range of people to make decisions about funeral arrangements, disposal of the body and dealing with remains. The purpose of this chapter is to consider how those decisions should be made, that is, what factors must be taken into account by the decision-maker and to what extent must they consult other people. These are important questions to answer.

23.2We have come to the view that factors to be taken into account generally fall into one of three categories. The first category is the autonomy of the deceased. It was strongly emphasised to us in consultation meetings that many people assume their views will be binding on their estate. The second category is family or the connections the deceased had with loved ones. While there is broad agreement that the views of family and loved ones should be taken into account, it is less clear how this should proceed where there is a difference of opinion among family members—for example, if the adult children want the deceased to be buried in the same plot as their first spouse while the surviving spouse disagrees. The third category relates to culture, religion and other contextual matters that influence the deceased’s connections in the world. For example, if a deceased person was involved with a particular religion it might be expected that they would want a funeral service and a burial consistent with that religion. However, there may also be a clash between culture (conceived broadly) and individual autonomy when people live their lives in accordance with a set of cultural or religious norms that differ from those in their family of origin. In this context, we consider it particularly important to address the role of tikanga Māori.

23.3Consequently, we have framed this discussion around the values of autonomy, family and culture. In this section, we explore how they should be taken into account by decision-makers—whether that is the executor, the deceased’s representative or a family member. Ultimately, we reach the view that the statute should not be too prescriptive, instead providing for the decision-maker to take account of all relevant factors and give the appropriate weighting in the circumstances. It is our view that the circumstances of each deceased person may be different, and the legal framework should therefore focus on how decisions are made rather than directing a particular outcome.