Chapter 24
The role of the courts

24.1Despite a family’s best efforts to resolve a dispute and even if the deceased appointed a deceased’s representative or executor, the court may still be required to make the ultimate decision. In this chapter, we explore the role of the courts in this regard.

24.2People we consulted with said that the focus should be placed on reducing the need for court involvement by preventing conflict in the first place. We agree. In this chapter, we make recommendations designed to encourage people to resolve disputes outside of court. We note, however, that the High Court already has jurisdiction over burial disputes and that the well established function of the courts is to exercise an oversight and determination function where disputing parties are unable to reach resolution. The question is not therefore whether the courts should have a role in burial disputes but rather when is it appropriate for them to become involved, which court or courts should become involved and how should they do so.

24.3At present, the High Court is the only court with jurisdiction to hear burial disputes, by virtue of its inherent jurisdiction over such matters as confirmed and discussed in Takamore v Clarke.476 We have reached the view that the court jurisdiction for resolving burial disputes should be set out in statute. We set out that proposed statutory jurisdiction in this part of the Report. First, however, we deal with the question of which courts should be given statutory jurisdiction to hear these kinds of disputes.
476Takamore v Clarke (SC), above n 5, at [7] and [90]–[91].