Developing a new statutory framework
Conclusion and questions
16.83Throughout this chapter we have set out a range of considerations, questions and examples of models to inform the possible design of a new statutory framework for burial disputes to replace the executor rule. We have emphasised the need for flexibility in the final form of any statutory regime. It may be that our final recommendations for statutory reform integrate aspects of a number of different approaches, or even that the best design of a new system is one that allows people to “opt in” or “opt out” of different approaches.
16.84We note in our summary that the New Zealand legal system has a strong history of formulating innovative approaches to socio-legal problems. A similarly innovative approach might be possible here.
Q16 Do you think the process for resolving a serious burial dispute should be clarified in legislation? Please give reasons. Q17 Any new statutory regime would need to reflect the values New Zealanders think should underpin the law in this area. For example, the wishes of the deceased have great moral force, but should they be legally binding? Or are the needs of the bereaved more or equally important? We are interested in the weight New Zealanders think should be given to the different values and interests involved in these decisions. Please order the following values 1–7, with 1 being the most important value and 7 the least. If you think several factors should be given the same weight, give them the same ranking:
- meeting the needs of any surviving partner to mourn and commemorate the deceased in a way they consider most appropriate;
- meeting the needs of close relatives to mourn and commemorate the deceased in a way they consider most appropriate;
- ensuring the wishes of the deceased, if they have been clearly expressed, are carried out;
- ensuring that cultural needs, such as reconnecting the deceased with a significant place and with their family lineage, are met;
- ensuring that the family’s religious requirements in relation to mourning and burial are met;
- ensuring that all those with a strong interest in the decision, such as the deceased’s extended family/whānau, are given an opportunity to be consulted and express their views;
- ensuring there is clear and certain legal responsibility for making burial and cremation decisions and clear guidance for decision makers; and
- are there any other factors or values you think should be taken into account?
16.85In addition to the high-level questions posed above, we also raise the following more detailed questions for consideration by those who have a view:
(a) If a rights-based regime were enacted, should it seek to vest the right of decision in an individual family member? Or should it vest the right of decision in the family of the deceased as a whole?
(b) If the right is able to be vested in an individual family member:
- How should that person be identified?
- Should they have the right to determine funeral rites and ceremonies as well as the location and method of disposal of the deceased?
- Should there be a duty to actively consult with interested friends and family before reaching a decision, or should the decision-maker only be required to take into account those views conveyed to him or her?
(c) If an individual has the right to express their wishes in advance, should that be limited to stating the person who has the right of decision, with a requirement that the decision-maker take the deceased’s wishes into account?
(d) Alternatively, should the deceased be able to leave binding burial directions which control the substantive form of burial, subject to court orders? If so what other mechanisms, if any, should be included in the statutory regime to balance the rights of the individual deceased against the interests of their family, community, and the public?
(e) Do you have any views or concerns about whether allowing the deceased to leave binding burial directions might have negative implications for tikanga Māori or other cultural or religious beliefs? Would inclusion of a provision like s 42 of the Human Tissue Act help address those concerns?