Supreme Court of New Zealand – The deceased was Tuhoe, but had spent the last twenty years of his life in Christchurch with his partner, whom he named his executor in his will. After his death his Tuhoe whanau moved his body to the Bay of Plenty and buried it in a family urupa. His partner successfully sued for orders allowing her to enter the urupa to disinter the body and re-inter it in Canterbury. The Tuhoe whanau was unsuccessful in all courts.
Held: (a) There is a common law rule under which personal representatives have both the right and duty of disposal of the body of a deceased. (b) Where no executor has been appointed, is available or willing to act, the person who is the potential administrator in the sense of having priority to claim administration has the right to decide. (c) The rule becomes operative where there is no agreement or acquiescence on what is to be done, where arrangements have broken down, or where nothing is happening. The personal representative has the common law duty to attend to disposal and right to possession for that purpose. (d) Providing a rule for a decision-maker is practical and convenient, when differences arise as to the manner and disposal of the body. It assists in speedy resolution of differences. (e) The rule had been built on experience with regard to perceived social necessities and changing public policies. Personal representatives are required to take into account different cultural, religious, spiritual practices as well as the views of immediate and wider family. The views of those close to the deceased may arise from customary, cultural and religious practices, which they consider should be observed. There is no requirement to engage in consultation, which may be impractical. The representatives may have regard to the practicalities of burial or cremation without undue delay. They may also follow their personal views, provided they have considered all relevant factors and viewpoints. (f) This approach allows a range of values to be weighed without presuming in advance which cultural position will prevail, while also ensuring that decision-making will be prompt for reasons of public health and decency. (g) The power of the personal representative to ensure proper disposal continues after burial. (h) A person aggrieved at a decision of the personal representative or the failure of the representative to resolve matters may challenge it in the High Court, but any review process must be straightforward to provide a prompt decision. (i) The common law position was not displaced by whanau invoking tikanga as to burial.
However values and cultural precepts important to New Zealand society must be weighed in the common law method used by the Court in exercising its inherent jurisdiction according to the materiality in the particular case
Judges:
Elias CJ, Tipping, McGrath, William Young and Blanchard JJ
Citations:
SC 131/2011, [2012] NZSC 116, [2013] 2 NZLR 733
Links:
Jurisdiction:
New Zealand
Citing:
Cited – In re JSB; Chief Executive, Ministry of Social Development v S and B 4-Nov-2009
(New Zealand High Court) The child was alive but severely brain damaged, having been injured by his mother. There was a dispute between his grandparents, who were caring for him, and his birth parents as to the funeral arrangements if he were to . .
Cited by:
Cited – Re JS (Disposal of Body) FD 10-Nov-2016
Child’s Wish for post-mortem cryonic Preservation
JS, a child of 14, anticipating her death from cancer expressed the desire that her body should receive cryonic preservation in the hope that one day a treatment might be available to allow her to be revived, and proceedings were issued. Her parents . .
Lists of cited by and citing cases may be incomplete.
Wills and Probate
Updated: 13 April 2022; Ref: scu.571417