15.26 In our view the main problem with the existing common law rule is that the body of law and the procedures around it are under-developed and inaccessible to the wider public. Any gains in certainty or clarity which the rule could otherwise bring to parties in dispute are likely to be affected by that. There may be people who anticipate a dispute arising upon their death but are unaware of the executor’s role in managing that dispute. Executors themselves may be unaware of their responsibilities in this context, and will not necessarily have detailed knowledge of the deceased’s wishes for disposal, any special competency to manage disputes in the post-death period, or be in a good position to take account of family interests.
15.27There may be a sense that because burial disputes come before the courts relatively infrequently, the executor rule is an adequate means of dealing with them quickly on the rare occasions they seem to arise. But the law must also permit those who wish to resolve their disputes outside of court – to “arrange their affairs in the shadow of the law”, or to use the law as the framework against which they engage in the discussion as to the burial matters – to do so, based on a clear understanding of what the law actually is. The law in this area should support people’s needs and expectations at this time, to allow grief and mourning processes to play out.
15.28If, as seems to be the case, the executor rule has been surpassed by social and legal developments in New Zealand, it may be argued that the matters which are currently addressed through the executor rule (and the administrator framework) should be replaced by new statutory provisions that are transparent, fair, accessible, and workable. Exactly how any new statutory provisions might work is an issue we explore in the next chapter.