Chapter 15
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.687  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.688

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”,689  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.690
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:691

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.692
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.693  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.694  Thus in cases such as Meier v Bell,695  Burrows v Cramley696  and Calma v Sesar,697  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:698

… 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,699  and a different approach has also been taken in other Australian cases including Jones v Dodd.700  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.
687As explained at [14.67].
688Takamore v Clarke (SC), above n 671, at [145].
689At [146].
690Frances H Foster “Individualized Justice in Disputes over Dead Bodies” (2008) 61 Vand L Rev 1351 at 1393–1398.
691Takamore v Clarke (SC), above n 671, at [205] and [206].
692Heather Conway and John Stannard “The Honours of Hades: Death, Emotion and the Law of Burial Disputes” (2011) 34(3) UNSW Law Journal 860 at 882.
693Prue Vines “Consequence of Intestacy for Indigenous People in Australia: The Passing of Property and Burial Rights” (2004) 8 AILR 1 at 5–8.
694Vines observes that intestacy is more likely among socio-economically disadvantaged sectors of the population, either because they feel they have no assets to leave or because of limited access to the knowledge or assistance needed to make a will: above n 693, at 8.
695Meier v Bell Vic Sup Ct 4518/1997, 3 March 1997. See also the comments of the Law Reform Commission of Western Australia that, in burial disputes involving aboriginal persons, “the benefits of the current common law approach (in particular, the promotion of judicial expediency in resolving burial disputes) may be unnecessarily forfeited by legislative direction to consider cultural and spiritual values”: Law Reform Commission of Western Australia Aboriginal Customary Laws: The interaction of Western Australian law with Aboriginal law and culture (2006, Final Report) at 260.
696Burrows v Cramley [2002] WASC 47.
697Calma v Sesar [1992] 2 NTLR 37.
698Meier v Bell, above n 695, at 9.
699Takamore v Clarke, above n 671, at [72]–[79] per Elias CJ.
700Jones v Dodd [1999] SASC 125.