Chapter 13
Overview of Part 4


13.1 When a person dies, the family and friends, or survivors of the deceased,502  must make a number of decisions. One of the most pressing and most significant is whether to bury or cremate the body.503  If burial is chosen they must also choose a burial site. The views of the deceased may be influential in making those decisions.

13.2These decisions are significant for survivors and carrying them out is important for the dignity of the deceased. There is also a public interest in seeing the body of deceased persons appropriately laid to rest. In some cases, notably if there is entrenched disagreement, recourse to the law may be required so that the body can be buried and these interests can be given effect.

13.3Part 4 examines the legal framework around burial decisions and how the potential for disagreement at this time is managed. The Burial and Cremation Act 1964 is silent on many aspects of the decision-making process, so much of the discussion centres on the applicable common law, the body of law derived from court cases.

13.4We discuss in this Part whether it may be in the public interest to replace the common law approach with a new statutory regime setting out the decision-making rights and duties of survivors of the deceased, and providing a statutory process for resolving disputes. We are primarily concerned with two issues:

502Throughout Part 4 we use the term “survivors” to refer to the family and friends of the deceased – that is, all those who have an interest in the burial of the deceased and care and custody of their body including the deceased’s partner or spouse, those related to the deceased by kin, and friends.
503Throughout Part 4 we sometimes use the terms “burial” or “form of burial” to cover both burial and cremation of a dead body. Burial (including eco-burial) and cremation are by far the two most popular methods of disposition of a deceased body in New Zealand, and while other methods are being explored, these are not yet widely available: see the discussion of alternative methods of disposition in ch 8 at [8.12].