Who Decides What Happens to the Body or Ashes of a Deceased Person?
When a loved one passes away, questions about who has the legal right to decide what happens to their body or ashes can lead to disagreements. The law provides clear guidance on this sensitive issue, as highlighted in key New Zealand court cases.
The Executor’s Role and Rights
In Takamore v Clarke [2012] NZSC 116, the Supreme Court clarified that, under common law, the executor of the deceased’s Will has both the duty and the right to decide on the disposal of the body. This includes making decisions about burial or cremation.
The Court emphasised that this rule exists because:
It provides certainty and authority in a time of grief.
It avoids the need for lengthy and emotional legal disputes.
It allows for practical and timely decisions, especially when family members disagree.
The Court also noted that when there is no executor or the appointed executor cannot act, the right passes to the person who has the highest priority to administer the estate under New Zealand law.
What About Ashes?
In Fitzgerald v Smith [2023] NZHC 405, Justice Cull extended this principle to include ashes. The decision confirmed that cremation and burial are both forms of disposal. Ashes, like a buried body, are the remains of the deceased, and the executor has the right to custody and decision-making regarding the ashes.
This includes:
Deciding where the ashes are kept before final disposal.
Determining who may be present when the ashes are scattered.
While the executor must consider the views of close family members, the ultimate decision rests with them. The Court will not generally make a direction as to the proper exercise of that discretion, in the absence of an application for directions or a challenge to the executor’s decision.
Why Is This Rule Important?
The courts have upheld the executor’s authority because it:
Offers a practical solution during a time of great emotional distress.
Ensures decisions are made by someone who understands the deceased’s wishes, financial circumstances, and family dynamics.
Reduces the need for court intervention, allowing for timely resolutions.
When Disputes Arise
If family members disagree with an executor’s decision, they may apply to the court for directions or challenge the executor’s discretion. However, courts are generally reluctant to intervene unless there is evidence that the executor is acting improperly.
Key Takeaways
The executor named in a Will has the legal right and responsibility to make decisions about the disposal of the deceased’s body or ashes.
This authority exists to provide clarity, avoid disputes, and ensure timely decisions.
The executor should take into account the wishes of the deceased and the views of close family members, but they are not bound by them.
If you’re named as an executor or are facing a dispute about the disposal of a loved one’s remains, it’s important to understand your legal rights and responsibilities. Contact Ross Holmes Virtual Lawyers Limited +64 9 4150099, kirstyh@rossholmes.co.nz for compassionate and professional guidance. We’re here to help during this challenging time.
