Chapter 16
Developing a new statutory framework

Questions for the design of a rights-based framework

16.41 In this section we give an overview of the following questions which would be raised in the design of a new rights-based framework:

16.42One aspect we think should form part of any new rights-based framework is the ability for the exercise of the right to be reviewed by the court upon application by an interested third party.732 That is the case overseas733 and it would also align with the position adopted by the Supreme Court in Takamore v Clarke.

Who is entitled to exercise the right?

16.43One of the most complex matters is likely to be determining who is entitled to exercise the right and how that person or persons are identified.

16.44There are a range of different models for design. One option would be to treat family collectively as having the right to carry out disposal unless the individual had expressed a different wish in advance. In that case, the family would be legally bound to follow that decision. Alternatively, family might be treated as having the final right of decision, even above the wishes of the deceased, but required to take the wishes of the deceased into account when exercising that decision.

16.45Another alternative would be to identify a single family member thought to have the best right to exercise the decision. That person could either be required to carry out the wishes of the deceased, or they could be required to take the deceased’s wishes into account (but not necessarily to treat them as determinative) when exercising the right of decision.

16.46The difficulty is that settling on a model requires balancing the wishes of the deceased, which may or may not have been expressed, against the many and varied needs of survivors (and also having regard to public and community interests).

16.47It may help in this balancing process to consider different ways of thinking about the roles of the survivors and of the deceased in the burial decision.

Conceptualising the role of family in burial decisions

16.48Broadly, there may be two ways of thinking about the role of surviving family in burial decisions. The first is to take a ranking approach to the relationships of individual survivors with the deceased, while the second is to approach the family/whānau as a collective whole.

16.49 Conway and Stannard note that literature on the role of family in death and bereavement is a growing field. They refer to Peskin’s ranking approach which suggests that the relationships the deceased had in life, such as relationships with family and friends, can be “ranked” according to closeness of the deceased.734 Using that theory it might be argued that the role of family, in burial decisions, should be conceptualised as forming a hierarchy of individuals based on proximity of relationship to the deceased (whether their actual relationship or their blood relationship)735 and that it should therefore be possible to single out a person who was most highly ranked and should qualify to exercise the right to decide. Such an approach is also likely to satisfy legal values like certainty and administrative efficiency. According to some commentators and courts it is desirable because it is more likely to lead to “timely disposal”.736
16.50However, ranking relationships in statute may be seen as incongruent with changing and increasingly diverse family structures and not giving full account to cultural and social understandings of family as a collective group, in which no particular relationship is necessarily treated as ranking above others in the post-death period. Other objections to the ranking approach include that it is artificial to rank the deceased’s relationships in such a way, particularly if it is based on a pre-defined legal hierarchy based on blood relationship with the deceased.737

16.51Cultural matters feed into this discussion. Identifying an individual family member as having a right of decision might appeal to a cultural perspective in which burial decisions are usually made in a timely manner and in which the spouse or close partner of the deceased – that person who spent most time with the deceased in life, or their heirs – is seen as the natural decision-maker. Recognising a right of decision as vesting in family or a collective group might be more acceptable to cultural traditions that value collective decision-making and the interest of the deceased’s family or cultural group in burial decisions.

16.52 If the ranking approach seems a reasonable way of thinking about the role of family in burial matters, a statutory hierarchy is a possible model to identify or select an individual decision-maker. Such hierarchies are used for this purpose in several Canadian provinces.738 Several design questions would arise with respect to a statutory hierarchy, including:
  • the order of family members on the hierarchy;
  • the circumstances in which the right passes on to the next named family member in the hierarchy, if the person who otherwise has the priority right is prevented from exercising it; and
  • distinguishing between the rights of equally ranked family members on the hierarchy, such as siblings or parents of a deceased.
16.53In New Zealand, a possible hierarchical order is the legislative order of priority for the right to apply for letters of administration contained in the High Court Rules.739 First-named in the list is the spouse or partner, then parents, children, and so on. Another possible hierarchical order, which could apply where appropriate, is the order used in the Māori Land Court for testate and intestate succession under Te Ture Whenua Maori Act 1993. Under this hierarchy the right would devolve first to children (instead of to a spouse or partner); then to brothers and sisters; then to those who are related by blood to the deceased and are members of the hapū associated with the land with which the deceased had connections.740
16.54The most obvious scenario in which the right would devolve down the hierarchy is where the highest-ranked family member is unavailable or unwilling to exercise it. There could also be a minimum age requirement. More complex questions in this realm are whether the right should pass on to a person who is, or may be, criminally responsible for the death of the deceased.741 Another question, discussed by the Queensland Law Reform Commission, is whether there should be a requirement as to “cultural appropriateness” of the decision-maker.742
16.55The method of distinguishing between equally-ranked persons on the hierarchy could be specified in statute,743 or it might also be possible to leave that to be decided by the court as and when necessary.

16.56An alternative way of conceptualising the role of family in burial decisions is as a collective body, exercising its rights in the manner that suits. That may include exercising deference to a person perceived as having authority; entering into discussion; making compromise; acquiescing to decisions; and/or attempting to reach consensus. Another possible model, therefore, is simply to vest a right of decision in family as a collective whole. A broad definition of family such as that used in the Coroners Act could be used, to ensure that everyone with an interest could be involved in the decision.

16.57Objections to this approach may be that it is more unusual for rights to be exercised collectively and for some this also raises concerns of delay or inefficiency, because there has to be some kind of consultation and discussion between the various people who are entitled to exercise the right, especially if they are required to reach consensus.

Conceptualising the role of the deceased

16.58Alongside the role of family, it is increasingly being recognised that the deceased also has an obvious interest in burial matters. The proper role for the deceased’s wishes in these matters has been much debated and centres primarily on one’s view of the extent of the deceased’s individual autonomy.744 Broadly, it might be said there are two possible ways of thinking about the wishes of the deceased: first, that the deceased’s wishes are influential but should not be treated as legally enforceable or determinative in a dispute; or second, that the deceased’s wishes should have binding legal status.

16.59Under the first approach the deceased’s autonomy is recognised in surrogate form; that is, they are entitled to choose someone, before they die, to make burial decisions on their behalf. They cannot bind that person to any particular decision, although the surrogate might be legally required to take the deceased’s wishes into account. We note that this is the model currently seen in New Zealand common law, with the executor acting as the deceased’s agent or surrogate.

16.60The surrogate approach gives the decision-maker discretion to determine what is most appropriate based on the applicable circumstances at the time of disposal. The decision-maker might consider the funds available to carry out disposal; any expressions or wishes that the deceased made before their death; and any wishes of relatives or friends. It might be favoured for that reason, as opposed to a binding directions approach.

16.61It has been argued that this approach takes less account of the individual autonomy of the deceased, as compared to treating the deceased’s wishes as legally binding in and of themselves.745 On the other hand, it might be said that this approach better balances the needs and interests of both the living and deceased:746

One has to consider respect for the wishes of the deceased and the needs of the living. It is often impossible to say whether the deceased foresaw every possible circumstance and the implications they might have upon his or her family.

16.62Because the deceased can choose this person before their death, it allows them to express their individual autonomy, but within more constrained parameters. They might be expected to choose someone who they believe will carry out their wishes, if that is very important to them.

16.63If this is the desired approach for a new rights-based statutory framework, the Burial and Cremation Act or its replacement could state that a person is entitled to appoint an agent or custodian to make burial decisions on their behalf after they die. That person would be under legal duties and obligations, including to take the deceased’s wishes into account. This role would be fulfilled separately from the role of the executor, whose rights and duties would then be limited to the legal estate, not the body (although the same person could be chosen for both roles). The person chosen to make the burial decision in the event of a dispute would have been specifically chosen by the deceased for that purpose, rather than exercising that role through the proxy of being the person who administers the estate.

16.64This is the approach taken in the state of New York and in some other United States jurisdictions.747
16.65 Under the second conception of the deceased’s role, the deceased’s wishes, in and of themselves, are treated as binding burial directions. Some say this approach is required in order to give full account to the deceased’s individual autonomy.748 There is a possible conceptual difficulty with allowing people to express binding disposal directions, since they would not be enforceable in a strict legal sense. If all of the family agrees not to follow them, the deceased has no legal recourse. That aside, it might nonetheless be desirable to treat the deceased’s wishes as binding burial directions, as a symbolic expression of the extent of the deceased’s individual autonomy.
16.66Existing statutory precedent for this arguably already exists in New Zealand, in the form of the Human Tissue Act 2008. Since 2008 that Act has allowed people to consent to the use of their body after death for educational or therapeutic purposes in a form which is legally binding on their survivors.749 The deceased’s informed consent (or objection) is treated as determinative, even if the wishes of family members conflict.750 We note, however, that the Human Tissue Act regime has different policy drivers behind it (including the public interest in increasing New Zealand’s rates of organ donation).

16.67Some statutory regimes overseas treat the deceased’s wishes as legally binding on survivors so long as the form and content of the wishes meet certain minimum conditions. Section 6 of the Cremation, Interment and Funeral Services Act (BC) provides:

A written preference by a deceased person respecting the disposition of his or her human remains or cremated remains is binding on the person who under section 5, has the right to control disposition of those remains […]

16.68Section 5 sets out a list of persons who are entitled to control disposition, and who would therefore be required to carry out the deceased’s written preference.

16.69A similar approach has also been taken by several American states751 and was also one of many recommendations made by the Queensland Law Reform Commission in 2011.752 The Commission recommended that their statute include a provision stating that if a person is arranging for the disposal of the remains or ashes of a deceased person and knows that the deceased has left “funerary instructions”, that person must take reasonable steps to carry out those instructions.753 The Ontario Law Reform Commission and the Law Reform Commission of Western Australia also recommended a similar approach be taken in their jurisdictions.754 So far none of these recommendations have been enacted into law.
16.70The examples from those jurisdictions just listed provide a possible model for a legal mechanism so an individual can give binding burial directions that would take priority in the event of a burial dispute.755 The directions could be made binding on an individual survivor or on a more broadly defined family group, if that was considered better suited to New Zealand circumstances.

16.71Adopting such a model would require additional policy decisions, such as:

  • How to achieve clarity and certainty around the deceased’s wishes. Do they need to be written and signed? Should there be a national register for recording disposal instructions?756
  • Policy limits around what constitutes enforceable disposal instructions. Instructions that do not comply with the law would necessarily be unenforceable. What if the deceased’s instructions were impossible, too difficult to carry out, or would exhaust the financial estate?757
16.72If the deceased is Māori, a binding burial directions approach might negatively affect the cultural rights of the deceased’s whānau, hapū or iwi. The Māori world view places high importance on the genealogical, spiritual and physical links between the deceased, their ancestors and their living family members. The potential effect on those linkages of treating the deceased’s wishes as binding must be taken into account when considering whether a regime like this should be implemented.758

16.73In all instances, under this model, a family member or survivor who strongly objected to the deceased’s burial directions would be able to apply for an order from the court to prevent them from being carried out. It would perhaps be necessary to include in the statute a requirement that the court, in reviewing any such wishes, consider whether carrying those out would have a detrimental effect on tikanga Māori.

16.74An additional possibility is to impose a statutory duty on the person leaving their wishes to take into account the needs and values of their family. Such a requirement is imposed under section 42 of the Human Tissue Act 2008 on those deciding whether to donate their body or body parts:

42 Duty to take into account immediate family’s cultural and spiritual needs, values, and beliefs
A person giving informed consent or raising an informed objection or overriding objection must take into account, so far as they are known to the person based on information available to the person in the circumstances, and decide what weight the person wishes to give to, the cultural and spiritual needs, values, and beliefs of the immediate family of the individual whose tissue is, or is not, to be collected.

16.75We wonder whether including a provision like this in a binding directions framework would be sufficient to mediate some of the concerns such a framework might raise.

What is the scope of the right?Top

16.76The final two matters we briefly raise about a possible new rights-based framework are (1) the scope of the right; and (2) the duties of the rights-holder.

16.77Questions about the scope of the right include, for example, whether it extends to deciding the funeral ceremony and performance of any funeral rites, or whether it should be limited to determining the location and manner of burial of the body.

16.78 Under existing common law the executor’s rights in this regard are unclear. It might be possible to leave the application and interpretation of the scope of the right to the court to determine on a case-by-case basis, but it seems to us that would undercut the argument for certainty and clarity that is a large part of the rationale for enacting a statutory right to control disposal. The approach in overseas jurisdictions may provide a steer for the possible scope of a new statutory right of decision.759
16.79 We also note that a rights-based statutory framework may also need to consider the point at which the right becomes operative. It could begin to operate at the point at which there was dispute or disagreement.760 If there were no disagreement, the right would not be exercisable. It may be useful for burial legislation to include explicit guidance as to when the right becomes exercisable.

What are the duties of the rights-holder?Top

16.80Once the decision-maker has been identified, additional matters to consider may include:761
16.81It may be desirable for the decision-maker to be under a statutory duty to consult widely and to facilitate discussions between family members before they make their decision. That is also likely to take time. At present the executor is obliged to take into account views that are conveyed to him or her, but is not under a duty to go and seek out those views.762
16.82 The statute could include a list of matters that the decision-maker must take into account, such as the wishes of the deceased and any values forming part of the “deceased’s heritage”.763
732See ch 17.
733See Cremation, Interment and Funeral Services Act SBC 2004 c 35; The Funeral and Cremation Services Act RRS 1999 c F-23.3; General Regulation to Funeral Services Act 1998 (Alberta).
734Conway and Stannard, above n 702, at 867.
735See generally Frances H Foster “Individualized Justice in Disputes over Dead Bodies” (2008) 61 Vand L Rev 1351.
736See the comments of Kimberley E Naguit as cited in Conway “Burial Instructions and the Governance of Death”, above n 708, at 79 and Takamore v Clark, above n 716, at [153]. See for example judicial statements in the US case Burnett v Surratt 67 SW 2d 1041 (Tex Civ App, 1934) at 1041; in Australia in Calma v Sesar (1992) 106 FLR 446 at 452 and in England in Buchanan v Milton [1999] 2 FLR 844 at 854. See also Warner v Levitt (1994) 7 BPR 15,110 and Privet v Vovk [2003] NSWSC 1038 (7 November 2003) at [6].
737Foster, above n 735.
738Alberta Regulation 226/98, r 36(2); Funeral and Cremation Services Act SS 1999 c F-23.2, s 31(1); and Cremation, Internment and Funeral Services Act SBS 2004 ch 35, s 5.
739High Court Rules, r 27.35. This was the approach of the Queensland Law Reform Commission, which took the relevant statutory order used in Queensland as the starting point for a recommended statutory hierarchy of those entitled to control disposal: see above n 730, at [6.97].
740Te Ture Whenua Maori Act 1993, s 109.
741See the discussion in Queensland Law Reform Commission, above n 730, beginning at [6.131]. See generally the discussion in ch 6 of that Report.
742Queensland Law Reform Commission, above n 730, at [6.106] –[6.108].
743The Canadian hierarchies provide that if two people with an equal claim contest the right, the eldest is entitled to decide. This is a certain and simple method of prioritising the rights in question, but is also arbitrary. Some American hierarchies authorise a majority of the disputing parties to control disposal; but this provides no answer when there are only two people in the category in question or when disagreement is split evenly within a group. See the discussion in Queensland Law Reform Commission, above n 730, at [6.39] –[6.41].
744See above at paras [16.10]-[16.16].
745See for example Eli Byron Stuart Ball “Property and the human body: A proposal for posthumous conception” (2008) 15 JLM 556 at 557 –559.
746Queensland Law Reform Commission, above n 730, at [5.52].
747NY PBH Law § 4201. See also Minn Stat 2012 § 149A.80.
748See above at [16.11]-[16.13].
749Under the previous 1964 Act, family members effectively had a statutory right of veto where they did not want donation to proceed.
750Although in practice, the medical community may not carry out donations if the family are opposed: see Nicola Peart “Immediately Post-Death: The Body, Body Parts and Stored Human Tissue” (paper presented to the NZLS CLE Intensive, 2012) at 133 and n 225.
751Minn Stat 2012 § 149A.80; Pa Stat Ann, title 20 § 305; DC Code § 3-412 and 3-413; and NM Stat § 24-12A-2.
752Queensland Law Reform Commission, above n 730.
753At [5.105] and R[5.1].
754Ontario Law Reform Commission Administration of Estates of Deceased Persons (R39, 1991) at 39–40 and Law Reform Commission of Western Australia Aboriginal Customary Laws: The Interaction of Western Australian law with Aboriginal Law and Culture (Final Report, Project 94, 2006) at 260–262.
755Conway, above n 708, at 72.
756At 86. As to formalities see the discussion in Queensland Law Reform Commission, above n 730, at [5.111] –[5.132].
757See discussion in Queensland Law Reform Commission, above n 730, at [5.91].
758See for example opposition by the Māori Party to the Human Tissue Bill which introduced the ability for individuals to make a binding consent to re-use of their body or body parts under the Human Tissue Act 2008. It was claimed the effect of the Bill would be that the “wishes of the individual will prevail at all times and at all costs. And the cost is quite simply another piece of legislation that marginalises, ignores, and rides over the cultural imperatives provided by tikanga Maori”: (23 October 2007) 643 NZPD 12607.
759See, for example, the way the right has been formulated in the legislation of Alberta, Canada (Alberta Regulation 226/98, r 36(2)), versus the District of Columbia, United States (DC Code § 3-412 and 3-413). See also Queensland Law Reform Commission, above n 730, at [R6-3].
760See the judgment delivered by McGrath J in Takamore v Clarke (SC), above n 716, at [154], discussing the point at which the executor rule becomes operative.
761Note that this may depend on the final form of the statutory regime.
762Takamore v Clarke (SC), above n 716, at [156].
763At [164].