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. 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. 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.
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. 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. However, in New Zealand there is little case law on this. Also, further questions about the administrator’s authority arise (see below).