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

Previous New Zealand case law

14.43Prior to Takamore v Clarke the executor rule had arisen for discussion or analysis in only a few New Zealand cases. As at 1945 it was considered to form part of New Zealand common law, and was thereafter applied at various points, as discussed below. Nonetheless when the case of Takamore v Clarke came before the Supreme Court in 2012, there was still some question as to the status of the executor rule in New Zealand common law, as demonstrated by the judgments delivered by Elias CJ and William Young J in Takamore v Clarke (see above).

14.44In the 1945 case Murdoch v Rhind,595  the deceased’s wife wanted to cremate the body of the deceased in Christchurch. His brother, who was the deceased’s sole executor, wanted to bury the deceased’s body in the family plot in Hokitika. Northcroft J applied the executor rule from established English case law and said that the brother of the deceased, as his executor, had the right to dispose of the body.
14.45In Re Clarke (Deceased), which arose in 1965 and concerned financial liability for funeral expenses, it was said that executors have the right and duty to bury the deceased “in a manner suitable to the estate he leaves behind him.”596
14.46In Tapora v Tapora in 1996,597  the wife of the deceased, who was not named as executor in his will, wanted to bury his body in Auckland. But his executors were preparing to bury his body in the Cook Islands. The common law rights of the executor were treated as prevailing, although both the High Court and the Court of Appeal recognised the wife’s right to apply for a recall of probate in order to control the burial decision.598  Ultimately, however, no application was made, and the executors’ rights prevailed.
14.47In Waldron v Howick Funeral Home in 2012,599  the family of the deceased had been planning disposal arrangements for some time. On the day of the funeral, the executor applied for an urgent injunction to prevent disposal. No explanation was given for the delay and no alternative disposal arrangements were put forth. Rodney Hansen J noted that “as a general rule, the executor or executrix is entitled to make final decisions as to funeral arrangements”.600  Nonetheless, in this case the balance of convenience fell in favour of refusing the injunction, given the lateness of the application, the desire to give the deceased the dignity of a funeral without further delay, and the fact that the family had travelled from Ireland to attend the funeral and further delay would cause them inconvenience.

14.48Related New Zealand cases have arisen that have turned on, or have discussed:

595Murdoch v Rhind, above n 526.
596Re Clarke (Deceased), above n 535, at 183.
597Tapora v Tapora CA 206/96, 28 August 1996.
598There may have been a basis for a recall application as the deceased had not personally signed the will.
599Waldron v Howick Funeral Home HC Auckland CIV-2010-404-005369, 17 August 2010.
600At [8].
601Watene v Vercoe, above n 538. See ch 18 at [18.44]–[18.45].
602Pauling v Williams CA 69/00 (20 July 2000). See ch 18 at [18.68].
603Re JSB (A Child) [2010] 2 NZLR 236 (HC).