Reviewing the executor rule
15.1Following the majority decision of the Supreme Court in Takamore v Clarke, the executor rule – in the form in which it applies in New Zealand – is now a significant part of New Zealand common law on the resolution of burial disputes. In this chapter we ask whether that rule, and its proposed extension to administrators where there is no executor who can otherwise act, is an effective and principled means of resolving burial disputes in contemporary New Zealand society. If the law is likely to be called on more frequently, it is worth ensuring that it works effectively and meets the needs of the public.
15.2Our preliminary view is that the executor rule, even in its modified form, is incomplete and that it may not align with contemporary values and expectations. In this chapter we summarise issues with the executor rule, including:
- practical issues, such as where there is no executor who is able and willing to exercise the right of decision;
- legal questions around the executor’s rights of decision; and
- issues of principle, for example vesting the right to decide in a single person who may have no or only a distant relationship with the deceased and the deceased’s family.
15.3We also examine issues with the common law administrator framework being used as a decision-making tool in cases where there is no executor able or willing to act.