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

Principles and key propositions

18.6The principles we consider relevant to this discussion are broadly the same as those that informed our approach to decision making and dispute resolution in the context of burials. Respect for the dignity of the deceased and, by extension, respect for human remains in the form of ashes is fundamental.

18.7However, there are also important differences. Firstly, ashes are not the same as bodily remains: unlike human bodies, they are not subject to further decomposition and they can be possessed, divided, and even transformed into objects such as jewellery and memorials:819

The physical change caused by cremation has enabled people to bring disputes before the courts that would be inconceivable if the deceased was still in bodily form. …

The physical form of ashes allows them to be carried, moved and generally treated with an ease that is not possible for bodies … the physical transformation caused by cremation lessens their corporeal quality, or perhaps even extinguishes that quality. It is, therefore, not surprising that ashes are moved about and argued over in ways that do not occur with bodies.

And while discussions about the treatment of ashes can give rise to deeply felt cultural concerns, they do not involve public health issues.

18.8Secondly, control over memorials and memorial inscriptions also raise different legal and policy issues. Memorials are private property but they exist in a shared public space and are attached to publicly owned land. The right to freedom of expression is relevant when considering what constraints are placed on inscriptions, but so too are the rights of the public and other families with neighbouring plots who make use of this shared space.820 In the course of this review we have been made aware of situations where intractable and lengthy disputes have arisen among family members over who has the right to determine what inscriptions are made on a memorial. Sometimes the dispute may arise within a family when someone wishes to add a name to a memorial or alter the wording of an inscription. In other cases the dispute may arise between the persons erecting the memorial and the cemetery managers.

18.9Thirdly, the legal and policy framework within which decisions about disinterment are made may involve health and safety issues, but the more challenging policy problem is determining the circumstances that justify disturbing human remains and who should be authorised to make such decisions. The authority to decide is also frequently an issue when considering the circumstances in which additional interments can be made in an existing grave, given that the original plot holder is deceased and there may be no clear line of authority among surviving kin.

18.10While some may question whether these disputes require a legal response, to the participants these seemingly petty issues may take on a huge significance. The absence of a clear legal framework for such decisions may lead to more protracted disputes. For those caught up in such disagreements, these issues may bring to bear intensely held emotions and beliefs. In the course of our initial consultation, local authorities and representatives of the funeral and cremation sector also impressed upon us the fact that disputes in these areas are becoming increasingly common. Some felt the current legal framework did not provide the level of clarity and assistance that is now required for those who find themselves attempting to mediate disputes over these matters.

18.11Based on our preliminary understanding of the scope of the problem, we accept that greater legal clarity is needed about who has decision-making authority and how these disputes are resolved. However, as a matter of principle, we believe the law and the courts should only become engaged in the most serious and intractable cases. In the majority of cases we think that clearer and more definitive contracts, guidelines and policies will prevent disagreements arising, or at the very least provide a clear indication of the respective rights and obligations of different parties.

18.12Our view is that court processes (including alternative dispute resolution) should be reserved for disputes about the secondary decisions relating to the custody of ashes, memorialisation and disinterment. Although family disputes may potentially arise over a range of other secondary decision making (such as where or whether the ashes should be scattered or interred) we consider that there may not be a strong enough policy justification for the intervention of the courts, and that these disputes should therefore continue to be handled by families with the support of funeral and bereavement services (including bereavement counselling) and better contractual arrangements.

18.13 However, we think the specific issues of memorialisation and the custody of ashes (particularly where there has been a relationship breakdown)821 may warrant dispute resolution processes being available where necessary and as appropriate. The issue of disinterment also requires Court oversight (as confirmed in Takamore v Clarke ).822 Burial disputes that involve additional interments may also fall within the jurisdiction of the courts and the considerations and questions in chapters 16 and 17 will be relevant. In this chapter we outline possible supplementary options to improve clarity in this area, with a view to reducing the potential for such disputes to arise.

18.14The role of judges as arbiters in burial and related disputes must be reserved for the most serious cases. There must be a sufficient policy rationale to justify the resources and expertise of the courts being directed to these issues. Circumstances in which there is fundamental disagreement about the primary decisions of whether to bury or cremate and the location of burial site (the subject of chapter 16) can be expected to meet this seriousness threshold, justifying development of a particular statutory regime and the involvement of the courts in resolution. Such decisions arise in the sensitive period prior to final disposition of the body of the deceased, and disputes can delay that final disposition.

18.15In the following discussion we traverse the specific policy and legal challenges arising in the different contexts within which secondary decisions are made about the treatment of ashes, memorialisation, subsequent interments and disinterment. We also put forward options for dealing with the issues raised in each of these decision-making contexts.

819Matthew Groves “The disposal of human ashes” (2005) 12 JLM 267 at 270–272 as cited by the Queensland Law Reform Commission A Review of the Law in Relation to the Final Disposal of a Dead Body (QLRC R69, 2011) at [7.27].
820See ch 5.
821One option might be to consider custody issues relating to ashes under the relationship property jurisdiction of the Family Court (where the dispute arises in the context of a relationship). However, the fact that human remains in the form of ashes have a unique and special status may require a different response.
822Takamore v Clarke [2012] NZSC 113, [2013] 2 NZLR 733.