Chapter 15
Reviewing the executor rule

Problems of principle with the executor rule

15.13Aside from the practical difficulties, the executor rule also raises problems of principle.

15.14It cannot be expected that in every burial dispute the executor will necessarily have a strong principled claim to determine burial. The position of executor is not one based on the executor’s relationship with the deceased or the family of the deceased. It is primarily an administrative role, designed to ensure that after death, the deceased’s property is dealt with. The executor will not necessarily have detailed knowledge of the deceased’s wishes for disposal, any special competency to manage the dispute, or be in a good position to take into account family interests. For this reason William Young J in Takamore v Clarke suggested that there is little logic to the executor rule.681
15.15William Young J also noted that Williams v Williams, the historical English authority for the legal right, concerned the executor’s financial obligations to cover the costs of disposal and the case should be limited in that respect. It should not be used as the authority for a rule conferring the right to control disposal on the executor as a matter of law, as against “close relatives who are also prepared to bury the deceased in an appropriate way”.682  Heather Conway has critiqued the rule on similar terms, giving examples of case law in which the rights of family members who may have had a closer relationship with the deceased were displaced by the executor.683
15.16Elias CJ, in Takamore v Clarke, emphasised that traditionally the responsibility for burial falls to family of the deceased. It is treated as a “shared responsibility” which “falls to be exercised according to the circumstances”.684  She also noted that relevant statutory provisions relating to care and custody of the body generally emphasise the role of family in the post-death period.685
15.17Aspects of the executor rule do not sit well with how burial decisions would be reached under tikanga Māori. While the executor rule emphasises administrative efficiency, with the focus on ensuring disposal in a timely manner, tikanga emphasises discussion and full airing of the issues around where the body should lie before the ultimate decision is reached. Those different cultural practices under tikanga have, to an extent, been taken into account by the courts in their development of the executor rule in New Zealand common law.686

15.18More recently, a growing trend in some quarters suggests that it is the individual themselves who should have control over their body after death, and that the executor should be legally bound to follow their wishes. We return to that discussion in chapter 16.

681Takamore v Clarke (SC)above n 671, at [203] per William Young J.
682At [202]–[203].
683Including Murdoch v Rhind [1945] NZLR 425 (in which the brother, who was executor of the deceased, prevailed over the deceased’s spouse) and Grandison v Nembhard [1989] 4 BMLR 140 (an English case in which the executor was entitled to bury the deceased in Jamaica, notwithstanding a request from the deceased’s daughter for her father to be buried in the United Kingdom): Heather Conway “Dead, but not buried: bodies, burial and family conflicts” (2003) 23 Legal Studies 423 at 427.
684Takamore v Clarke (SC), above n 671, at [90].
685Such as the Burial and Cremation Action 1964, s 46E; Coroners Act 2006; Human Tissue Act 1998, s 12; and the Maritime Transport Act 1994, s 25.
686See Clarke v Takamore [2010] 2 NZLR 525 (HC) at [91]–[102]; Takamore v Clarke [2011] NZCA 587, [2012] 1 NZLR 573 at [254]–[257]; Takamore v Clarke (SC), above n 671, at [164].