Chapter 15
Reviewing the executor rule

Legal questions

15.8The executor rule, although clarified to an extent in Takamore v Clarke, is still a relatively undeveloped legal rule in New Zealand. In the absence of statutory reform, the establishment of a body of court precedent will be necessary before many of the legal questions about the operation of the executor rule may be resolved.

15.9For instance, it is unclear whether a nominated executor has authority to arrange final disposal before the will has been probated, particularly if a third party has applied for recall of probate for the express purpose of gaining control over the burial decision.676  In that situation it might be inappropriate for the executor to proceed. On the other hand, being required to wait until probate is granted might undermine the efficiency of the executor rule, as a person’s will is often not probated until some time after their death.
15.10Another question concerns the point at which the executor’s right becomes “operative” in the terms discussed by the Supreme Court. At present it seems that executors must determine for themselves the point at which the disagreement has become sufficiently serious that it is correct for them to act on their right of decision.677  Acting too early could lead to a claim that at the relevant time they had no legal right to proceed.
15.11The time at which the executor determines their rights have become operative could also become crucial in a tikanga Māori setting. In that setting it will be important to devote time to discussing the appropriate burial location and for a possibly large number of people to express their views. The point at which the executor may appropriately determine that “nothing is happening” or “arrangements have broken down” is likely to be less clear in such a setting, particularly for executors unfamiliar with tikanga. But once the executor determines that it is appropriate to exercise their right of decision, they are then entitled to have regard to the need for burial without “undue delay”.678  That could lead to tikanga discussions being cut short.
15.12Any uncertainty in the executor rule is also likely to cause problems for third parties who might be involved in burial arrangements, such as funeral directors who are asked to proceed with burial or cremation in circumstances of dispute or disagreement.679  A coroner who is releasing a body after a post-mortem might face difficulty in knowing who he or she should release a body to if the family of the deceased are in dispute.680
676Probate is the certificate granted by the High Court to confirm that the will of the deceased has been proved and registered in the Court and that a right to administer their estate has been granted to the executor proving the will: Administration Act 1969, s 5(1). See Tapora v Tapora CA 206/96, 28 August 1996 as discussed in ch 14. See also Abeziz v Harris Estate [1992] OJ No 1271 (ONGD) as cited in Takamore v Clarkeabove n 671, at [66] per Elias CJ.
677Takamore v Clarke, above n 671, at [154].
678At [156].
679In the United States, funeral directors are reluctant to follow instructions in an unprobated will if they conflict with the preferences of the biological family: Tanya Hernández “The Property of Death” (1998–1999) 60 U Pitt L Rev 971 at 1020. See also the statute of Minnesota which provides that funeral directors may, in the absence of knowledge to the contrary, rely on burial instructions given by certain family members of the deceased who represent they are the sole survivors of the deceased: Minn Stat 2012 § 148A.80 subd 5.
680Coroners Act 2006, s 42. See Burrows v HM Coroner for Preston, above n 675, where the Court noted that coroners need clarity on these issues.