Chapter 18
Decisions about ashes, memorialisation, additional interments, and disinterment


18.43As noted, dispute can arise about how to memorialise a burial or interment site, particularly in situations of relationship breakdown.

18.44 One example is Watene v Vercoe834 where the parents of a child were unable to agree on the appropriate wording of the inscription on the headstone of the child’s grave and applied for orders to the District Court under the Guardianship Act 1968. Ultimately the judge dismissed the application as being outside the jurisdiction of the Guardianship Act.835 But the judgment proceeded on the basis that, had there been an executor, they would have the right to make burial arrangements, including the inscription of the headstone.836
18.45The Judge also suggested that section 9 of the Burial and Cremation Act (which provides that the local authority may permit the erection of any monument or tablet “as it thinks proper”) may impose a role on the local authority as a cemetery manager to help resolve such disputes.837

18.46However, we approach this suggestion with caution; while cemetery providers will no doubt be sensitive to the different needs of families, it may not be desirable to require or suggest that they take on any formal substantive role in family dispute resolution. In our view, the review of the decision-making framework in chapter 16 provides an opportunity to consider other possibilities.

18.47 The option we raise for consultation is that these disputes could be treated similarly to disputes about the custody of ashes. As we suggest above, disputes about custody could be directed to the Family Court resolution processes. We think that this may also be an appropriate option for the memorialisation disputes that occasionally arise. Like the custody of ashes, the potential for memorialisation disputes to arise in situations of relationship breakdown suggests that Family Court processes could be suited to dealing with the nature of the dispute and the underlying issues.

18.48 It would be necessary to clarify the Family Court’s jurisdiction to handle such disputes. Legislation that clearly sets out the right to apply to the Family Court for specific orders would need to be considered, thereby providing access to the Family Court’s alternative dispute resolution methods. We expect that the Family Court resolution processes would assist in the majority of cases and that not many cases would require a formal order from the court.

834Watene v Vercoe [1996] NZFLR 193 (DC).
835At 199. The Guardianship Act 1968 was repealed by the Care of Children Act 2004, s 152.
836At 195–196.
837At 199.