Chapter 13
Overview of Part 4

Our approach

13.19Burial disputes “stand at the intersection of a number of competing principles”524  including the dignity of the deceased, the rights and interests of survivors, and cultural and religious rights. They arise at times of emotional stress and sadness but they must also be decided without too much delay. Any proposals for statutory reform will inevitably have to grapple with these intersecting interests and values. We recognise that this is an area where practice can and does deviate from strict law and we consider that any statutory reform must be flexible enough to accommodate a range of approaches, including tikanga Māori. Therefore we raise the following key policy questions.

Should our law recognise a right of decision?

13.20This is a question of first principle and one that was discussed by members of the Supreme Court in Takamore v Clarke.525  The main question is whether and at what point it is appropriate, in an area where family and whānau play such a significant and usually collective role, for the law to recognise a “right” of decision in relation to burial matters that could potentially override or defeat the interests of others.

Who might be entitled to exercise a right of decision?Top

13.21New Zealand common law holds that, in the event of a dispute, the executor of the deceased’s will has the right to determine what happens to the body. The executor’s right to decide is qualified by the need to consider the views of the deceased and of their family and friends, including where these views are based on cultural, spiritual or religious beliefs. Ultimately, however, the executor has the legal right of decision, subject to court oversight.

13.22The rights of the executor are widely recognised at common law (although not necessarily well known amongst the public), but the executor rule has come under significant critique and analysis in recent years, particularly with social and cultural changes in common law countries that have affected how death is handled. If the executor is not the appropriate person to exercise a right of decision, we might then ask who is, and how that person or persons could be identified within a possible new statutory regime.

What role should the courts have in managing disagreement and resolving disputes?Top

13.23At present burial disputes are heard in the High Court. A person might ask the Court to determine who is entitled to control disposition. If a body has been taken without consent, and family or friends are afraid it might be disposed of against their wishes, they might apply to the Court for urgent orders to prevent disposition and/or to seek to have the body returned to their custody. We ask whether the High Court should remain the forum in which such disputes are heard, and consider possible alternatives.

524Leeburn v Derndorfer, above n 520, at 10.
525Takamore v Clarke (SC), above n 508, at [55]–[90] per Elias CJ.