Chapter 14
New Zealand law on care and custody of the body

Evolution of the executor rule at common law

14.61The source of the executor’s authority does not come from their relationship to the deceased or their family and friends, nor from any particular experience in making burial decisions or facilitating decision-making. The source of their authority towards the body comes from English common law. The executor rule evolved chiefly as a means of ensuring bodies were given a proper burial in the Christian tradition.627
14.62The right of the executor emerged at a time when Christian burial practices were widespread in England, and the common law recognised the right of every person to a Christian burial (which was derived from the right under church law to be buried in the parish churchyard).628  Burial in the Christian tradition was entrenched in English society and in English law, as reflected in a quote from the 1884 case R v Price :629

The law presumes that everyone will wish that the bodies of those in whom he was interested in their lifetime should have Christian burial. The possibility of a man’s entertaining and acting upon a different view is not considered.

The role of the executor

14.63The law’s presumption that everyone should have a Christian burial gave rise to a concomitant duty on those closest to the deceased to carry this out. In R v Stewart it was said that:630

We have no doubt … that the common law casts on some one the duty of carrying to the grave, decently covered, the dead body of any person dying in such a state of indigence as to leave no funds for that purpose. The feelings and interests of the living require this, and create the duty...

14.64There is early common law authority that imposes the duty of burial on widowers and on the father of a dead child.631  It also seems clear that, from at least as early as 1744, English common law saw the duty of ensuring the deceased had a Christian burial as falling on the deceased’s executor.632  This was largely a pragmatic decision: because the executor had financial control of the estate, the executor was able to reimburse themselves out of the estate, or was otherwise liable to those who had in fact carried out the duty of burial. Where disputes did come before the court they were usually about who was liable for the cost of burial, rather than who had a right to bury the deceased in a particular way or in a particular burial site of cultural or religious significance.
14.65 The source of the proposition that the executor has not only a duty but also a right in the body, which could defeat the role of others who may have been close to the deceased, is said to be the 1882 case Williams v Williams.633  In that case the deceased wanted to be cremated, which was unlawful in England at the time, so he asked his friend to cremate his body in Italy. She did so, but only after exhuming the body from its original location, where it had been buried by the man’s wife and children. When the friend tried to recover the cost of the cremation from the man’s estate, the case came before the courts. Kay J concluded that the deceased’s friend could not recover from the estate because “the executors are entitled to the possession and are responsible for the burial of a dead body”.634
14.66Whether the executor’s financial liability for burial properly extends to a right of decision as to the form or location of burial has been much debated.635  However, despite misgivings as to its authoritativeness, Williams v Williams continues to be cited as the foundational case for the common law rights of the executor. Those rights are now well established in most common law countries including, in the form set out in Takamore v Clarke, New Zealand.636

The administrator of the deceasedTop

14.67While the executor rule became well established, courts encountered difficulties dealing with disputes in which the deceased had appointed no person to the role of executor before they died – usually because they had left no will. The response was to identify the person who had the right to administer the deceased’s property in the absence of a will, and to treat that person as also having the right of decision in respect of the body of the deceased. That approach has been applied in recent English637  and Australian cases.638  The Supreme Court has suggested it should apply in New Zealand.639

14.68An administrator is appointed by the Court after a person dies without an executor or without a will. The administrator carries out the duties towards the estate which would otherwise have been carried out by the executor. The person who applies for administration is often someone close to the deceased, like a spouse or a child or someone who is entitled to benefit from the estate.

14.69The order of entitlement to letters of administration is usually set out in a succession law statute, which addresses how the estate of deceased persons are dealt with in the event that they die intestate (without leaving a will).640  In the case of New Zealand, the general order of priority for a grant of administration in case of intestacy is set out in r 27.35 of the High Court Rules.641  The order is:
14.70It is not necessary for the person in question to actually have been granted letters of administration, merely that they have the highest legal entitlement to them. In such cases the person may be referred to as the potential, rather than the actual, administrator of the deceased. There are also examples of cases where letters of administration have been granted for the sole purpose of conferring a right of decision regarding the burial of a body.644

14.71Determining burial disputes according to the entitlement to letters of administration has been critiqued. We discuss those criticisms in chapter 15.

Other relevant interests and rulesTop

“No property in a body”

14.72The common law rights of the executor developed against a background of another significant common law rule: the rule that the common law recognises no property in a dead body.

14.73 The proposition that a dead body cannot be a source of enforceable property rights (such as a right of ownership) was said to have been first set down in English common law in Hayne’s case,645  although there is doubt about whether Hayne’s case in fact stood for this proposition. Nonetheless, by the middle of the 19th century the “no property” rule was a well-established and accepted part of the common law.646  Over the course of the development of the common law, the no property rule has spread to a number of other common law countries, including New Zealand.
14.74Legal scholars continue to debate the policy and principled underpinnings of the no property rule and why, given that today it is subject to significant qualifications and exceptions, the no property principle nonetheless continues to survive, and indeed continues to form the starting point for all discussions about legal control of the body.647  One reason may be that the deceased human body is regarded in nearly all societies and cultures as being vested with a sacred or semi-sacred nature and more than just a “thing” which can be subject to property concepts such as ownership, possession and sale.648  The survival of the no property rule may illustrate a persistent desire to avoid degrading the body by associating it with principles of commodification, which tend to infuse lay understandings of property.649

Status of the deceased’s wishes

14.75Flowing from the no property rule is the fact that at common law, the wishes of the deceased are said to have no legally binding effect.650  Hence, while the executor is expected to take account of the views of the deceased, he or she is not legally bound to carry them out. What this means is that, while the deceased can make a will which binds their survivors to deal with their property in a certain way, they cannot leave legally binding directions about what should happen to their body; for instance, that they would like it to be cremated, or that they would like particular funeral rites observed.651  While in practice many people may include such directions in their will, and usually these will be observed, in a strict legal sense they have no binding status. This is also the case in New Zealand, although the executor is expected to take the deceased’s wishes into account.652

The need for “timely disposal”

14.76At the time of evolution of the executor rule, it was claimed that there was a pragmatic need to ensure that unburied bodies did not cause a public health risk.653  Today modern methods of refrigeration mean that bodies, if handled correctly, do not cause a public health risk. But it is often said that timely disposal is still required because it respects the body of the deceased, their family, and the wider community.654
627Conway “Burial Instructions and the Governance of Death”, above n 624, at 425-427; see also Takamore v Clarke (SC), above n 526, at [182] per William Young J.
628Tomas “Who Decides where a Deceased Person will be Buried – Takamore Revisited”, above n 545, at 85-86.
629R v Price (1884) 12 QBD 247 at 250.
630R v Stewart (1840) 12 A& E 773 at 779.
631Ambrose v Kerrison (1851) 10 CB 776, 138 ER 307; R v Vann (1851) 169 ER 523.
632William Blackstone Commentaries on the Laws of England: a reprint of the first edition with supplement: Vol II (Dawsons of Pall Mall, London, 1765) at 508.
633Williams v Williams (1882) 20 Ch D 659.
634At 664 (emphasis added).
635See for example the comments of William Young J in Takamore v Clarke (SC), above n 526.
636See Murdoch v Rhind, above n 526.
637Burrows v HM Coroner for Preston, above n 613.
638Smith v Tamworth City Council (1997) 41 NSWLR 680; Meier v Bell Vic Sup Ct 4518/1997, 3 March 1997; Dow v Hoskins, above n 607.
639Takamore v Clarke (SC), above n 526, at [145].
640See in New Zealand the Administration Act 1969, s 5.
641The Court did not discuss possible use of the order of priorities in Te Ture Whenua Maori Act 1993 for administering the estate of a Māori deceased. See ch 16 at [16.53].
642Under the Matrimonial Proceedings Act 1963 or the Family Proceedings Act 1980.
643Where the Court is satisfied there is a child of the de facto relationship, or the partner has made a substantial contribution to the de facto relationship; and the Court is satisfied that not being entitled to succeed on the intestacy would result in “serious injustice” to the partner: Administration Act 1969, s 77B(2).
644See Buchanan v Milton [1999] 2 FLR 844 (Fam); Burrows v HM Coroner for Preston, above n 613, as cited in Takamore v Clarke (SC), above n 526, at [206] per William Young J.
645Hayne’s case (1614) 77 ER 1389.
646Prue Vines “The Sacred and the Profane: The Role of Property Concepts in Disputes about Post-Mortem Examination” (Working Paper, University of New South Wales, 2007) at 3.
647See Eli Byron Stuart Ball “Property and the human body: A proposal for posthumous conception” (2008) 15 JLM 556.
648Prue Vines, above n 646.
649See Alexandra George “Is ‘Property’ Necessary? On Owning the Human Body and its Parts” (2004) 10 Res Publica 15.
650Williams v Williams, above n 633, at 665.
651Conway “Burial Instructions and the Governance of Death”, above n 624, at 62–67.
652Takamore v Clarke (SC), above n 526, at [156].
653See R v Newcomb (1898) 2 CCC 255 as cited in Conway “ Burial Instructions and the Governance of Death”, above n 624, at 13.
654Heather Conway “Dead, but not buried: bodies, burial and family conflicts” (2003) 23 Legal Studies 423 at 426.