Chapter 15
Reviewing the executor rule

Practical issues with the executor rule

15.4 It is said that the executor rule is a desirable rule of law because it brings certainty and clarity to people who are in a burial dispute. If those people “accept or acquiesce” to the executor’s decision they may be less likely to become involved in court proceedings.671  This will depend, however, on a number of conditions being fulfilled, including the parties in dispute being able to clearly identify the “person with authority to decide”; that person knowing they are entitled to make the decision and doing so; and the other parties acquiescing to or accepting their decision, rather than mounting a legal challenge.
15.5 Those ideal conditions might not always exist. For instance, if the deceased never made a will, at the time of their death no one will occupy the position of executor. Or the will might not be able to be located, so the executor cannot be formally identified. The disposal arrangements could then be open to challenge by an executor who later claims not to have acquiesced or agreed to the arrangements.672  Situations also arise where it might seem clear as a matter of fact who is the person with authority to decide but there are questions as to their authority under law to exercise the right of decision – for instance, if a disagreement arises between co-executors who have equal rights to decide, or if the person with authority to decide has been criminally charged with causing the death of the deceased.673
15.6The nominated executor may accept the grant of probate and carry out their duties towards the estate, but may decline to make a decision as to disposal of the body. Professional executors, for example, might be expected not to exercise the right of decision with regard to the body and may instead encourage the parties in disagreement to resolve it.674  This seems appropriate in principle, but may leave survivors in dispute with no clear pathway to resolution and may undermine the intended administrative efficiency of the executor rule.
15.7 Some common law courts have resolved these practical problems by recognising the right of decision as vesting in the person who is next highest ranked on the statutory hierarchy of potential administrators of the estate.675  However, in New Zealand there is little case law on this. Also, further questions about the administrator’s authority arise (see below).
671Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733 at [153] per Tipping, McGrath and Blanchard JJ. See also at [207] per William Young J.
672At [67] per Elias CJ.
673See for example Hartshorne v Gardner (the two disputing parties were parents of the child and had equal rights to a grant of letters of administration); see also Scotching v Birch.
674For example, it is the policy of the Public Trustee of Queensland to leave appropriate arrangements for the disposal of the body to those closest to the deceased: Queensland Law Reform Commission, (R 69, 2011), at 76. See also Keller v Keller [2007] VSC 118, [2007] 15 VR 667 in which the sole and independent executor declined to make a decision as to burial.
675See for example Burrows v HM Coroner for Preston [2008] EWHC 1387, [2008] 2 FLR 1225 (QB); Calma v Sesar [1992] 2 NTLR 37; and Saleh v Reichert (1993) 104 DLR (4th) 384, 50 ETR 143.