Law Com Asks Whether Family Court Best Forum For Burial Disputes
4 October 2013
Hon Sir Grant Hammond KNZM
Law Commission Asks Whether Family Court May Be Best Forum For Burial Disputes
The Law Commission is seeking public feedback on how the law should respond to disagreements over the most appropriate way to farewell the dead and deal with their physical remains.
Usually decisions about how a person is mourned, what happens to their remains, and how they are commemorated are made amicably by close family and friends.
However, occasionally disagreements arise about what should occur, including disagreements over whether a person’s remains should be buried or cremated and, if buried, where their physical remains should be interred. Disputes may also arise over what happens to a person’s ashes after the person has been cremated.
The Law Commission’s President, Sir Grant Hammond, says usually those making such decisions are impelled by a desire to “do the right thing” by the deceased; but for cultural and personal reasons, profound disagreements can sometimes arise among the bereaved about what the “right thing” amounts to.
Disagreements may be rooted in deeply held cultural and religious convictions. At other times they may reflect entrenched interpersonal or family conflicts and allegiances.
The Law Commission, an independent Crown Entity, considers how the law should respond to these complex cultural and interpersonal conflicts within the context of its latest Issues Paper, The Legal Framework for Burial and Cremation in New Zealand: A First Principles Review.Sir Grant Hammond says that presently entrenched burial disputes, such as that which occurred over the final resting place of James Takamore, are determined by the High Court or, on appeal, by the Court of Appeal or the Supreme Court.1
1 Takamore v Clarke  NZSC 116,  2NZLR 733
In its Issues Paper, the Law Commission asks whether such disputes could instead be heard in the Family Court or, where appropriate, Te Kooti Whenua Māori (the Māori Land Court).
The project’s lead Commissioner, Dr Wayne Mapp, said the Commission’s preliminary consultation and research suggests conflict over these matters may become more frequent as a result of New Zealand’s increasingly multi-cultural demographics and the complexity of family structures:
“The rights and duties of those charged with making decisions about final arrangements need to be clear and accessible, and when intractable disputes arise there need to be cheap and accessible mechanisms for breaking impasses.”
“We are keen to hear the public’s views on these issues.”
The Issues Paper is divided into four Parts, each of which focuses on different aspects of the review:
• Part 1 discusses the values and public interests which underpin the review and introduces some of the cultural and religious customs and practices which influence how different groups in New Zealand approach death.
• Part 2 focuses on the Burial and Cremation Act 1964 and assesses how well it is meeting New Zealanders’ needs with respect to the provision of places for burial and cremation.
• Part 3 focuses on the funeral services sector and examines the case for improving consumer protections.
• Part 4 focuses on the legal and customary frameworks within which decisions are made and disagreements resolved at the time of death. It asks whether there is a need to modernise the law and develop a more accessible mechanism for resolving difficult inter-cultural and inter-personal disputes which can arise among families at the time of death.
A stand-alone Summary is also available for download and is intended to be used as a public consultation document. It includes the key questions posed by the Commission in relation to the various options for reform contained in each Part of the Issues Paper.
Sir Grant said the Commission hoped New Zealanders from all walks of life will take this opportunity to make submissions on the paper and its reform proposals and thereby help inform the development of our laws in this important and sensitive area.
Submissions close on the 20th of December 2013 and can be made online at www.lawcom.govt.nz, emailed to email@example.com or posted to Burial Review, Law Commission, PO Box 2590, DX SP 23534, Wellington 6140.
The full Issues Paper, including a summary, can be found on the Commission’s website at http://www.lawcom.govt.nz/project/review-burial-and-cremation-act-1964/issues-paper/34 .