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. 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.
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. Some courts have said, however, that approach is only a presumption and that it may be varied in appropriate circumstances.
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.
14.53The Queensland Law Reform Commission undertook a comprehensive review of Queensland burial legislation in 2011. 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. 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”. 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. 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.
14.56In Canada, the executor rule is also well-established in common law 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”. In British Columbia, that person (the executor) is bound by the written preference of the deceased. 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. 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. The deceased cannot bind the executor to carry out their wishes. 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.
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.
14.59 American courts recognise a person’s common law right to have their body disposed of in accordance with their testamentary wishes. A quasi-proprietary right in the body was first recognised in Pierce v Proprietors of Swan Point Cemetery, followed by numerous judicial statements of the need to uphold the wishes of the deceased, such as in Coney v English: “[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. 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.