67We consider that while this clarification of the common law brings some certainty to the law, in a number of key ways, it does not go far enough in reflecting public expectations as to how these decisions should be made in practice. Consequently, we recommend that there should be new statutory rules establishing who may make these decisions; how they should be made; and how they should be dealt with by the courts if recourse to the courts is sought. In making these recommendations, we aim to ensure that:
68It is not uncommon for a person to express to relatives or friends their wishes as to how their funeral should be conducted or how their body should be dealt with. Currently, the law does not recognise those wishes, so the person making the decisions can override them, even if they are unequivocal and reasonable. Of course, in practice, they will usually be taken into account and often complied with.
69We have found that there is an increasing legal and philosophical acceptance that the wishes of the individual are important and must hold considerable weight. This reflects the importance given to individual autonomy. Consequently, we propose that if a person has expressed their wishes in writing, those wishes must be given effect to unless there is a compelling reason not to do so. Such reason might be that the wishes are unreasonable or impractical, including that there are insufficient funds in the estate to provide for them. If the wishes have been expressed but not in writing, they must be taken account of by the person making decisions, but they should not be binding, given the lack of certainty that may surround verbally expressed wishes.
70Of course, what is considered to be a “compelling” reason not to follow the wishes of the deceased will depend upon the views of the person making the decisions. We do not consider that a tighter legal test is possible, given the vast range of circumstances that it will cover. For this reason, we propose that the new statute should enable people to appoint a trusted person as a “deceased’s representative” to make decisions about the funeral and dealing with their body after their death. A trusted appointed person is much more likely to prioritise the wishes of the deceased person when faced with countervailing considerations. By appointing a deceased’s representative, a person will have assurance that their wishes will be carried out.
71A deceased’s representative should be appointed in writing and the person must consent to the role. In addition to having the right to make decisions about funeral arrangements, how the body should be disposed of and how any remains of the body should be dealt with, the deceased’s representative should have the right to custody of the body to facilitate those other decisions. He or she should also have the duty to dispose of the body within a reasonable time.
72As we described, currently, if a person has a will and so has appointed an executor of that will, that person has the power and duty to make decisions about the body and about funeral arrangements if the family cannot agree, in addition to administering the deceased person’s property. We consider that this rule should continue (and be reflected in statute), but it should be subject to the overriding right of any deceased’s representative appointed by the deceased person before their death.
73Under the proposed framework, if a person has both a deceased’s representative and an executor of their will, the deceased’s representative will make the decisions about the funeral and the body, leaving the executor to administer the estate. If no-one has been appointed to either of these roles, any member of the deceased person’s family should have the power to make the decisions. If a funeral director receives instructions from one family member, he or she may rely on those instructions unless the director has reason to believe that another person has been appointed as the deceased’s representative or executor or that there are challenges to the instructions.
74If a person dies without appointing a decision-maker and there are no family members available to make the decisions, the statute should provide a power for any other person to make the decisions. If there is no-one stepping forward to arrange the funeral, the public interest requires that some public agency has a duty to provide for the disposal of the body in a reasonable timeframe. We consider that local authorities are best placed to do this. The costs should be minimal and should be covered by the estate or, if that is insufficient, the funeral grant from Work and Income New Zealand.
75While we consider that the proposals above increase certainty and decrease the likelihood of irreconcilable disputes by establishing a framework for who may make burial decisions and providing that any written wishes of the deceased person must be given effect to, there may still be disputes that need to be resolved by the courts.
76Currently, only the High Court may resolve these types of disputes. We consider that the Family Court or the Māori Land Court may be better placed to resolve some types of burial disputes. For example, the Family Court has expertise in dealing with families in dispute who are likely to have an ongoing relationship after court proceedings. The Māori Land Court has expertise in dealing with burial disputes that involve consideration of tikanga.
77For these reasons, we propose that a person may apply to the High Court, the Family Court or the Māori Land Court to resolve a burial dispute. Which court is chosen will depend upon the nature of the issue in dispute and other factors such as timing. However, the Family Court or the Māori Land Court may only hear the dispute if both parties agree to that jurisdiction. If they do not agree, only the High Court may resolve the issue.
78In exercising this jurisdiction, a court must take account of a number of statutory considerations, including:
79One of the key questions of this review is how tikanga Māori should be given effect to in burial decisions. Tikanga prescribes a number of practices and decisions that must happen after the death, including that relatives must accompany the tūpāpaku (the body) to the marae or home and that visitors make a tono or challenge for the right to bury the body. Under tikanga, these rules apply to a deceased person irrespective of their expressed desire for that to happen.
80The Supreme Court in Takamore v Clarke held that tikanga is a value that should be taken into account where relevant to the burial decision. It is clear to us also that tikanga must be expressly recognised in New Zealand law on burial. However, balancing the interests of tikanga alongside legal certainty and individual autonomy has been a key challenge of this review. We consider that the proposed recommendations for burial decisions provide a framework of laws that creates space for tikanga to apply as much as possible as follows: