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

Litigation and court procedure

14.77In practice, the process by which disagreements are resolved may unfold with little or no involvement by the executor. Disagreements may be resolved well before they reach court. However, it is still possible that one of the parties may bring court proceedings.

14.78In this part we summarise the jurisdiction of the High Court following Takamore v Clarke and give some indication of what may happen if a case comes before the New Zealand High Court in future. The procedure has not yet been settled, but this is a summary of how we understand it might operate based on comments of the Supreme Court in Takamore v Clarke. It will depend on how the courts apply the common law in these kinds of proceedings and how it develops as cases come before the courts in future.

The High Court’s jurisdiction

14.79The majority in the Supreme Court were not explicit as to the jurisdiction under which these proceedings would be brought. Elias CJ proceeded on the basis that the High Court has inherent jurisdiction over these matters.655  The possibility that the High Court has inherent jurisdiction in this regard has also been discussed in Re Jones (deceased)656  and Re JSB657 and raised as a possibility in Watene v Vercoe.658 Another possible form of proceedings may be an application for declaratory judgment under the Declaratory Judgments Act 1908, although that Act is not aimed at dealing with the kind of factual issues that burial disputes raise.


14.80It appears that in future the High Court could be asked to determine a burial dispute in a range of circumstances, including:

14.81There could be a request for urgent orders to stop a burial from going ahead.

An application to review an executor’s decision

14.82The Supreme Court has said that an “aggrieved person” can commence proceedings in the High Court to challenge the executor’s decision. If the High Court is satisfied that the decision was inappropriate, it would have the power to make any orders necessary, including conferring the right to decide on someone else.659
14.83The Supreme Court also said that the High Court should review the substance of the decision.660  In practice, the threshold for “re-making” the decision of the executor is still likely to be high. The grounds for review have not yet been made clear. At least until a body of case law develops, it can be expected that the High Court will continue to exercise a significant margin of deference to an executor’s decision in future court proceedings.
14.84It has been said that the High Court should examine the appropriateness of the executor’s decision on a case-by-case basis, taking into account the circumstances of the particular dispute. In a dispute over burial location the Supreme Court has said that the High Court should assess “the nature and closeness of the relationship of the deceased with each family and each location at the time of death”.661  Aside from this, there is little New Zealand case law discussing factors the Court should take into account, although it might draw on factors taken into account by overseas courts in similar cases.
14.85It has been noted that if an executor’s decision is challenged prematurely (perhaps in an effort to circumvent that decision) the applicant will bear the costs of a failed application.662  This means that the timing of the application to review the executor’s decision may be critical. Applying too early, before the executor has made a decision, could cause the application to fail; however, once the executor has made a decision, the third party may need to institute proceedings promptly before that decision is carried out.

An application for the right to make a burial decision where there is no executor

14.86The Supreme Court has suggested that if there is a burial dispute in which there is no executor, the right could be conferred on the person with the best claim to administer the estate. The Supreme Court’s endorsement of this approach, while not binding, provides a blueprint for the resolution of future disputes where there is no executor (which so far has not arisen in New Zealand).663  It has been suggested that New Zealanders tend to take a relaxed approach towards leaving a will, so the issue of extending the executor rule to administrators is one that the courts could face in the future.664
14.87In such proceedings, the High Court would have to consider who has the best entitlement to the grant of letters of administration, based on the order contained in the High Court Rules. The Supreme Court said that the High Court would not be bound to confer the right in that specific order but it might only be appropriate to depart from it in extraordinary circumstances.665  Without further development of the common law it is difficult to know when that might be, but sufficient reason might be if the first-named person in the hierarchy has been found criminally responsible for the death of the deceased;666  or if the Court is satisfied that the first-named person is estranged from the deceased.667
14.88It would not be necessary to actually make a grant. Usually a grant of letters is not made until several days after the death and cannot by law be made earlier than 10 working days from the date of death, although the Court can shorten the time period.668  The proceedings could be heard separately.

An application to make a decision where the executor has declined to do so

14.89The High Court may also be asked to determine a case where there is an executor who has declined to make the burial decision and the parties are in dispute but cannot resolve it by reference to the executor’s rights. This arose in the Australian case Keller v Keller.669  If that happened in New Zealand it may be that the Court would begin by identifying the person with the best claim to administer the estate, as discussed above, and treat him or her as having the right of decision.

An urgent application for an injunction

14.90Sometimes the High Court may be called upon to make urgent orders in relation to a dispute over a body. An application under the High Court’s inherent jurisdiction may be necessary if one party to the dispute has taken the body, and urgent interlocutory orders are required to prevent disposal proceeding or for police to take custody of the body. The order will have the effect of placing a stay on the matter until the substantive question of who should control disposal can be considered by the High Court. This scenario arose in the dispute over the body over James Takamore.

655Takamore v Clarke (SC), above n 526, at [7].
656Re Jones (deceased) [1973] 2 NZLR 402 (SC).
657Re JSB, above n 603.
658Watene v Vercoe, above n 538.​
659Takamore v Clarke (SC), above n 526, at [160]–[162].
660At [162].
661At [167].
662At [160].
663In Takamore v Clarke (SC), above n 526, the Court’s comments on this point were obiter because they were not directly relevant to the resolution of case before the Court. See Re JSB, above n 603, in which the High Court considered whether to make orders to manage the risk of dispute upon the imminent death of a young child. The judgment included some discussion of the grant of letters of administration in intestate burial disputes at [26] and [62]. See also the 1988 decision Re Tupuna Maori where it was noted that letters of administration may be granted for a number of purposes; in that case it was to enable the likely descendant of the deceased to recover the head of the deceased from the possession of London auctioneers: Re Estate of Tupuna Maori HC Wellington P 580/8, 19 May 1988.
664“New website launched to support New Zealanders’ will to live” Scoop (29 July 2013) <>.
665Takamore v Clarke (SC), above n 526, at [148].
666See for example Scotching v Birch [2008] All ER 265, in which the mother of the deceased, who had been found guilty of the murder of the deceased, was precluded from being granted letters of administration in a burial dispute between herself and the father. See also Re JSB, above n 603. The question was also covered in depth in Queensland Law Reform Commission A Review of the Law in Relation to the Final Disposal of a Dead Body (QLRC R69, 2011) at [6.131]–[6.195].
667See for example in Minnesota, where the Court may order that the right passes upon a determination that the person on whom the right would normally devolve and the deceased were estranged at the time of death (defined as “having a relationship characterized by mutual enmity, hostility or indifference”): Minn Stat 2012 § 149A.80, subd 3.
668High Court Rules, r 27.29(1).
669Keller v Keller [2007] VSC 118, (2007) 15 VR 667.