Reviewing the executor rule
The administrator framework as a decision-making tool
15.19It is difficult to make the executor rule work effectively without extending it to administrators, so if the executor rule remains part of New Zealand common law, it is likely that the potential administrator of the deceased’s estate will continue to be “co-opted” to help make the executor rule work. Three members of the Supreme Court favoured this approach for reasons similar to those reasons supporting the executor rule; because it is said to be a certain and administratively efficient means of determining a burial dispute.
15.20However, the administrator framework itself raises issues, although of a slightly different nature to those associated with the executor rule.
15.21While it is true that the people listed in the statutory hierarchy from which the administrator is identified are “likely to be those with closest family connections to the deceased”, this does not necessarily make them the most appropriate person to decide in all cases. The order of priority for administering the estate is usually spelt out in terms of closeness to the deceased based on blood relationships, but this will not necessarily reflect the closeness of the deceased’s relationships in life or at the time of their death. Also, the list of relationships is mainly limited to those based on kin, and so excludes any person who might have some principled claim to make the decision but was unrelated to the deceased.
15.22William Young J in Takamore v Clarke thought that resolving burial disputes “through the proxy of deciding who the administrator should be” was not fit for purpose, noting that:
An administrator will not usually have been entrusted by the deceased with the making of burial arrangements. The occasion for an administrator to make a decision as to burial will usually only arise where letters of administration have been sought as a way of resolving a pre-existing dispute.
15.23Conway and Stannard suggest that such an approach is used by judges in common law jurisdictions as a means of avoiding engaging fully with the underlying issues, because they are able to identify a person who should make the decision without opening the “Pandora’s box” of emotions and family tensions that burial disputes raise.
15.24 Vines writes about the use of the administrator framework in Australia, citing several cases in which it has led to courts excluding consideration of strong cultural or spiritual imperatives associated with the burial decision. This framework has operated to the detriment of indigenous Australians, who are more likely to die without a will but for whom cultural and spiritual imperatives related to burial are particularly important. Thus in cases such as Meier v Bell, Burrows v Cramley and Calma v Sesar, even where claims were made based on culture and religion, the deciding factor was the entitlement of the administrator under succession law hierarchies. In Meier v Bell, the Court said that cultural concerns may be disregarded in the application of this framework:
… the manner of resolution of a problem such as the present must be consistent. … There cannot be departure from principle in order to accommodate particular factual disputation, whether it be founded on matters religious, cultural or of some other description.
15.25That is not a stance that has been adopted by New Zealand courts, and a different approach has also been taken in other Australian cases including Jones v Dodd. Nonetheless, it may be argued that the administrator framework places a high emphasis on dealing with disputes dispassionately and in a “legal” sense, and this may inadvertently obscure or prevent judges from engaging with the underlying values and cultural issues that such disputes raise, and which are of real and valid concern for the parties involved.