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

Overview of the landscape in other common law countries

14.49In its basic form, the common law burial right of the executor is similar throughout a number of jurisdictions. The United States is an exception but provides an example of a different approach.


14.50 In Australia the executor rule is firmly established.604  Moreover, if there is an executor who is ready, willing and able to arrange for disposal of the body, Australian courts have consistently treated their right of decision as being conclusive, rather than a priority right that can be displaced by the court.605
14.51 Australian courts have also heard a number of disputes where there was no executor. In Meier v Bell, it was held that the right to decide should vest in the person with the best claim to be appointed administrator of the deceased’s estate.606  Some courts have said, however, that approach is only a presumption and that it may be varied in appropriate circumstances.607
14.52No Australian state or territory has enacted statutory provisions in their burial legislation to deal with the rights and duties of people in the post-death period. An individual’s disposal instructions are not generally recognised as legally binding, although some states have made a statutory exception to this principle by recognising an individual’s preference for or against cremation.608
14.53The Queensland Law Reform Commission undertook a comprehensive review of Queensland burial legislation in 2011.609  One of its recommendations was to enact a “statutory hierarchy” ranking the rights of those close to the deceased to control burial of the body, which would replace existing common law. It also recommended making the funerary instructions of the deceased legally binding. Those recommendations have not yet been taken up.


14.54 The executor rule originated in English common law and continues today.610  English cases have limited discussion of the extent of the courts’ oversight of an executor’s decision. In Grandison v Nembhard Vinelott J held that, on ordinary principles, the Court would not interfere with the executor’s decision unless it was “wholly unreasonable”.611  In the case before the Court, the plaintiff had “not come anywhere near establishing a ground for interference” of the court. However, Vinelott J observed that it would be “surprising” if the court were limited to interfering with the decision only where the cost of carrying out the executor’s decision could not be covered by the deceased’s estate.612  Vinelott J’s comment suggests that the English courts might be more willing to examine the appropriateness of the substance of the executor’s decision to a greater degree than they have traditionally done so.
14.55 Where there is no executor, it has been said that the right devolves to the person with the best claim to administer the estate unless there are special circumstances that would justify the court conferring that right on a different person. That approach was confirmed by Cranston J in Burrows v HM Coroner for Preston.613


14.56In Canada, the executor rule is also well-established in common law614  but has been replaced in some provinces by statutory provisions. Alberta, British Columbia and Saskatchewan each have enacted a statutory hierarchy that prioritises the right of the personal representative named in the will to “control the disposition of human remains”.615  In British Columbia, that person (the executor) is bound by the written preference of the deceased.616  If there is no personal representative, next in the hierarchy is the spouse or partner, adult children, then parents and so on.
14.57Ontario recognises the common law executor rule.617  In Waldman v Melville (City) it was said that the executor had a right of possession that necessarily continued after burial, otherwise those opposed to the executor’s decision could disinter the body.618  The deceased cannot bind the executor to carry out their wishes.619  The Ontario Law Reform Commission recommended in 1991 that statutory provisions setting out the executor’s rights replace the common law, but those recommendations were not taken up.620
14.58Under Canadian common law the deceased’s instructions are not considered to bind the executor, but British Columbia and Quebec have both enacted legislation overriding the common law rule by recognising the right of the deceased to leave binding directions for the disposal of their body.621

United StatesTop

14.59 American courts recognise a person’s common law right to have their body disposed of in accordance with their testamentary wishes.622  A quasi-proprietary right in the body was first recognised in Pierce v Proprietors of Swan Point Cemetery,623  followed by numerous judicial statements of the need to uphold the wishes of the deceased, such as in Coney v English:624  “[t]he law…gives great weight, if not controlling force, in such matters to the wishes of the deceased…[which are] paramount to all other considerations.”
14.60In addition, a number of states have passed legislation governing the effect of a deceased person’s directions and listing the categories of people who can make decisions about the disposal of the deceased’s body. Usually this is first the deceased person themselves, or an agent appointed on their behalf to carry out those wishes, and following that the surviving spouse or partner, and so on.625  The courts continue to play a prominent role, however, often weighing the wishes of the deceased against those of others who challenge them in court.626
604Smith v Tamworth City Council (1997) 41 NSWLR 680.
605Lynden Griggs and Ken Mackie “Burial Rights: The Contemporary Australian Position” (2000) 7 JLM 404 at 409–410.
606Meier v Bell Vic Sup Ct 4518/1997, 3 March 1997.
607Jones v Dodd [1999] SASC 125 at [37]; Dow v Hoskins [2003] VSC 206 at [43].
608Griggs and Mackie, above n 605, at 408.
609Queensland Law Reform Commission A Review of the Law in Relation to the Final Disposal of a Dead Body (QLRC R69, 2011).
610Williams v Williams (1882) 20 Ch D 659; Rees v Hughes [1946] KB 517; Dobson v North Tyneside Health Authority [1997] 1 FLR 598.
611Grandison v Nembhard (1989) 4 BMLR 140 (Ch) at 143.
612At 143.
613Burrows v HM Coroner for Preston [2008] EWHC 1387, [2008] 2 FLR 1125 (QB) at [13]–[14].
614See for example Hunter v Hunter (1930) 65 OLR 586; Abeziz v Harris Estate (1992) 34 ACWS (3d) 360, [1992] OJ No 1271 (QL); Waldman v Melville [1990] 2 WWR 54 (SKQB).
615General Regulation to Funeral Services Act 1998 (Alberta), reg 36; Cremation, Interment and Funeral Services Act SBC 2004 c 35, s 5; The Funeral and Cremation Services Act RRS 1999 c F-23.3, s 91.
616Cremation, Interment and Funeral Services Act SBC 2004 c 35, s 6.
617Hunter v Hunter (1930) 65 OLR 586 at 596.
618Waldman v Melville [1990] 2 WWR 54 (SKQB).
619Saleh v Reichert (1993) 104 DLR (4th) 384.
620Ontario Law Reform Commission Report on administration of estates of deceased persons (R39, 1991) at 40–42.
621Civil Code of Quebec LRQ c C-1991, art 42; Cremation, Interment and Funeral Services Act SBC 2004 c 35, s 6.
622See O’Donnell v Slack 55 P 906 (Cal 1899); Re Johnson’s Estate 7 NYS 2d 81 (NY 1938); Holland v Metalious 198 A 2d 654 (NH 1964); Re Estate of Moyer 577 P 2d 108 (Utah 1973); Kasmer v Guardianship of Limner 697 So 2d 220 (Fla 3d DCA 1997).
623Pierce v Proprietors of Swan Point Cemetery 10 RI 227 (RISC 1872).
624Coney v English (1914) 86 Misc 292. See also Heather Conway “Burial Instructions and the Governance of Death” (2012) 12(1) OUCLJ 59 at 67–71.
625See DC Code, title 3 § 3-413(a); Minnesota Statutes 2012 § 149A.80; Pennsylvania Statutes, title 20 § 305; New Mexico Statute § 24-12A-2.
626See BC Ricketts “Validity and effect of testamentary direction as to disposition of testator’s body” 7 ALR 3d 747; Frank D Wagner “Enforcement of preference expressed by decedent as to disposition of his body after death” 54 ALR 3d 1037. Both have done a comprehensive review of how the deceased’s wishes have been treated by the court in a range of different scenarios.