16.9 The matters that inform a burial decision will vary greatly for different people. They may also vary depending on whether we are considering our own death or that of someone close to us.
If an individual stipulates a certain form of burial while alive, this should be respected as part of their overall autonomy, with the right to self-determination once again being paramount. The deceased should be the only person to decide what is in his or her best interests and, having made a conscious decision to this effect, ought to dictate the form of burial.
[S]ituations already exist in which an individual may make autonomous choices which transcend death, such as posthumous reproduction and organ donation. If decisions made in life about the fate of the body can already take effect after death, why should we ignore the burial wishes of the deceased?
If by enforcing a will what we care deeply about is respecting the decedent’s wishes and autonomy, then it is not clear why this principle should be defeated in situations where the decedent’s wishes are concerned with the disposal of her own body. On the contrary, it seems unambiguous that a person’s body is one of the most precious things about which she cares, certainly more than her real property.
16.14A person’s cultural and religious beliefs may also influence the degree of importance they place on having their burial wishes treated as paramount. For instance, if a person has converted to another religion during their lifetime against their family’s wishes, it might be very important to them to be able to control their own burial rather than leave it to be carried out in accordance with their family’s religious tradition. Or, if an individual has married someone from a different culture or religion, that person might nonetheless want to ensure that the cultural or religious beliefs of their family of origin dictate or find expression within their burial.
16.16 At the same time, it will not be important to everyone that they are able to dictate what happens to their body after they die. For some people autonomy over their bodies and their decisions might be important while living, but they might be less concerned about their wishes for their dead body, and content to leave it to their survivors to decide.
[A] funeral service addresses the emotional needs of a decedent’s survivors by providing a socially acceptable outlet for feelings of grief and pain. Planning the funeral service also assists survivors in coming to terms with the loss and their grief ...
… the need to have regard to the sensitivity of the feelings of various relatives and others who might have a claim to bury the deceased, bearing in mind also any religious, cultural or spiritual matters which might touch upon the question.
The Court has to consider the wider interests in the claim, which … arise not out of the personal preferences of the living, but out of their obligation to the dead and to those still to come (including Mr Takamore’s descendants), the connections with whom will be diminished in cultural terms by burial away. … decisions in such matters affect the enjoyment of the culture of the hapū in a way which engages s 20 of the New Zealand Bill of Rights Act.
16.21Families who are denied involvement in the burial arrangements, who feel they lack input into the decision, or who are required to carry out a burial in a manner to which they are fundamentally opposed may be inhibited in their grief and may find it difficult to gain closure.
16.22The number and range of matters that may be relevant to the burial decision and the number of people who may have a vested interest in that decision give some sense of the potential for dispute. They also illustrate the complex and difficult nature of the task of weighing up these relevant matters and attempting to arrive at some logical and reasoned decision as to who, if anyone, should have the final right of decision.
[C]ases such as the present stand at the intersection of a number of competing principles. These may be competing prescriptions and proscriptions of a cultural, social or religious nature, personal taboos, wider concerns as to public health and decency, the attitudes of the grieving family and friends, and the wishes of the deceased. Moreover, these competing pressures may be difficult to resolve, especially where they are based on feelings which are strongly held at a time of great emotional stress and which are difficult to justify, or even explain, in any rational way. … It is an area of law where one can read in the reported decisions an anguish in the judges seeking to accommodate the concerns of those interested; and their embarrassment at having to deal, often in some haste, with bitter conflicts within families over the remains of a recently deceased relative or friend, which conflicts, although arising out of genuinely held feelings, are perceived as being unseemly.
16.25 The best approach, therefore, is to retain flexibility in the statutory regime. This may be achieved by setting out the broad principles in statute, keeping the terms of the statute open-textured in nature rather than overly prescribed, and making the courts available to decide these matters where parties cannot come to agreement between themselves. Courts would be able to deal with the diversity of matters that could arise in a burial dispute on a case by case basis, weighing them in the balance according to the interests and circumstances of the particular case, and having regard to what is required to do justice between the parties. Guiding statutory factors would assist the Court in that inquiry, and the Court must be accessible and its orders able to be made in a timely manner. We develop that discussion in chapter 17.
16.26 Despite the clear interest in retaining flexibility in any new statutory regime, we might also consider whether a particular statutory emphasis should be placed on any one of the following matters in a burial dispute: