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

Rights of the executor

14.3 The central rule of common law in this area is that the executor of the deceased, who is the person named in the deceased’s will to carry out the deceased’s directions for their property, has the right of decision regarding the burial of the deceased.526  This common law right was first discussed in New Zealand in the 1945 case of Murdoch v Rhind,527  in which the wife of the deceased contested the right to determine the deceased’s form of burial with the deceased’s brother, his brother having been named as executor in the deceased’s will. The deceased’s brother, as executor, was held to have the right to decide the form of burial. Northcroft J said:528

Not only has the executor the right, he has the duty, of disposing of the body of the deceased. It is for him to say how and where the body shall be disposed of. I can do no more than pronounce accordingly.

14.4More recently, the executor’s common law right of decision has been discussed and upheld in litigation arising from the burial dispute over the body of Mr James Takamore.529 The executor holds this right of decision regardless of the deceased’s cultural or religious background, although the deceased’s cultural or religious practices and beliefs, and those of their family, must be taken into account by the executor when making their decision.530 Where the deceased is Māori or where principles and practices drawn from tikanga Māori are claimed to apply, tikanga is treated as a value that the executor must take into account.531 We refer to the executor’s right of decision as the “executor rule”.

14.5 In its decision over the burial place of Mr Takamore, the Supreme Court clarified how the executor rule operates in New Zealand common law. It held that:

14.6 The executor’s right of decision at least encompasses the right to decide the location and form of burial. It is unclear whether the executor’s legal right of decision extends, for instance, to determining funeral rites and ceremonies536 or to possession of the ashes of the deceased.537 It has been suggested that the executor has the right to control the memorialisation of the deceased,538  but legally the scope and content of the executor’s rights in these matters remain unclear in New Zealand common law. These and other questions will be answered progressively as cases come before the High Court and as New Zealand common law in this area continues to develop.

Review in the High Court

14.7A majority of the Supreme Court in Takamore v Clarke held that New Zealand common law has reached the position whereby a person can apply to review the executor’s decision in the High Court.539  In such proceedings, the Court should:540

[A]ddress the relevant viewpoints and circumstances and decide, making its own assessment and exercising its own judgment, whether an applicant has established that the decision taken was not appropriate.

14.8The majority was not explicit as to the jurisdiction or procedure under which those and related proceedings would be brought.541  We discuss this further at the end of this chapter.

Relevant statutory provisionsTop

14.9We also note that the executor’s common law right is subject to relevant statutory provisions. If the person died in violent, sudden or unnatural circumstances, the Coroners Act 2006 applies and the Coroner has statutory authority to take custody of the deceased’s body in order to determine the cause of death.542  The executor’s common law right of decision may also be affected by the existence of the deceased’s prior consent to donate their body under the Human Tissues Act 2008.543
526Williams v Williams (1882) 20 Ch D 659; Murdoch v Rhind [1945] NZLR 425; Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733.
527Murdoch v Rhind, above n 526.
528At 427.
529Takamore v Clarke (SC), above n 526, at [152].
530At [156].
531At [164].
532At [154].
533At [156].
534At [156] and [164].
535Williams v Williams, above n 526; Murdoch v Rhind, above n 526; Takamore v Clarke [2011] NZCA 587, [2012] 1 NZLR 573 at [200]. See also Re Clarke (Deceased) [1965] NZLR 182.
536See for example the background to the case Awa v Independent News Auckland Ltd [1995] 3 NZLR 701 (HC), where there was disagreement over where to hold the memorial service for the deceased prior to burial.
537See ch 18.
538Watene v Vercoe [1996] NZFLR 193 (DC) at 196.
539Takamore v Clarke (SC), above n 526, at [160].
540At [162].
541Elias CJ treated it as falling within the High Court’s inherent jurisdiction: at [7].
542Coroners Act 2006, ss 18–19.
543The Human Tissues Act 2008 allows a person to make a legally binding consent to donation of their body or body parts for therapeutic, scientific or educational purposes.