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.
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.