Burial and cremation

Decisions about the deceased’s body: Legal rights and powers

Normally there aren’t any problems or disputes about what is to happen with the deceased’s body, and so strict legal rights and powers don’t come into play. The deceased may well have made clear what they wanted to happen, either in their will or just by telling family and friends, and in that case their wishes will usually be followed. If the deceased didn’t tell family and friends what they wanted, then the family will decide together what is to happen.

As with other areas of life, legal rights and powers will become important if there’s a disagreement about what should happen. In this section we explain who has the legal power to make decisions in these cases.

Who has the legal right to make decisions about the deceased’s body?

Takamore v Clarke [2013] 2 NZLR 733 (SC)

If the family can’t agree on where the deceased is to be buried, or whether they’ll be buried or cremated, the person who has the legal power to make these decisions will be the executor named in the deceased’s will.

Takamore v Clarke [2013] 2 NZLR 733 (SC); High Court Rules, rule 27.35 (in the Judicature Act 1908, Schedule 2)

If the deceased didn’t leave a will, or if the will is invalid or didn’t name an executor, then this decision-making power usually lies instead with the closest family member, as the person with the best legal claim to deal with the deceased’s property. When there’s no will or executor, the deceased’s property is dealt with by a relative appointed by the courts as the “administrator” for the estate (see in this chapter “Dealing with the deceased’s property”). There’s a legal order of priority for who the courts will appoint for this: at the top of the list is the spouse or partner, followed by the children, and then parents, sisters/brothers, and aunts/uncles. However, you don’t have to have already been appointed administrator to be able to exercise decision-making power about the deceased’s body – what counts is that you’re the one who has priority.

The executor/administrator has to take into account the views of immediate and wider family, and to consider different cultural, religious and spiritual practices. However, they don’t have to actively seek out the family’s views.

Note: The executor/administrator is expected to follow the deceased’s wishes, but they’re not legally required to do this.

Can family challenge the executor/administrator’s decisions?

Takamore v Clarke [2013] 2 NZLR 733 (SC)

Yes. The executor-administrator’s decision can be challenged in the High Court. In deciding the case the judge must recognise and respect different cultural practices, as well as different family and personal interests.

Burials: Legal requirements

Documents that have to be completed before a burial

You’ll need to:

  • fill out the local council’s application form for the burial, and
  • show the council a copy of the doctor’s Medical Certificate of Cause of Death (or the coroner’s Order for Disposal of Body).

Where can bodies be buried in New Zealand?

Burial and Cremation Act 1964, s 46

Usually a burial has to be in either:

  • a public cemetery (these are run by local councils)
  • a denominational burial ground (these are usually small church burial grounds that cater for a particular religion, such as Catholic or Anglican)
  • an urupā (Māori burial ground), or
  • a private burial ground.

However, the body can be buried somewhere else if there isn’t one of those cemeteries or burial grounds within 32 kilometres of where the death occurred or where the body is going to be buried. In that case the nearest District Court has to be notified about the burial, including the cause of death. For contact details for the courts, go to: http://www.justice.govt.nz/courts/district-court.

Buying a burial plot

You should check within the family whether the deceased had already bought a burial plot.

As an example, in 2016 a burial plot in the public cemeteries run by Porirua City Council will cost $2,088 for an adult-size plot and $750 for a child (under 10). A second burial in the same plot costs $1,128, or $531 for a child.

You’ll need to pay for the plot immediately, or give the council proof that Work and Income or ACC will pay for it through a funeral grant (see in this chapter, “Financial support for bereaved families”). If the deceased qualifies for a funeral grant, contact Work and Income or ACC first, so that this can be processed as soon as possible.

You should contact the local council at least 24 hours before burial to choose a burial plot, although in urgent cases you may be able to arrange a plot on the same day as the burial if you contact them early on that day.

The grave will be dug by the cemetery’s “sexton”, and the cost of this is usually covered in the charge for the plot.

Cremation: Legal requirements

In New Zealand cremation is more common than burial: it’s been estimated that about 70% of deceased New Zealanders are cremated. Cremations take place in crematoriums run by local councils and by some private operators.

Documents that have to be completed before a cremation

Cremation Regulations 1973 regs 4(2), 5(1), 7(1), Forms A, B, F

If the deceased’s body is going to be cremated, you’ll need the following documents:

  • the doctor’s Medical Certificate of Cause of Death (or the coroner’s Order for Disposal of Body) – take this with you when you go to the local council office to apply for a cremation.
  • an Application for Cremation (Form A) – you’ll need to complete and sign this at the local council office. You’ll need to pay for the cremation at the same time (see below). The council will also give you forms B and F (see below) to be completed.
  • a Certificate of Medical Practitioner (Form B) – you’ll take this to the doctor who saw and identified the body after death for them to complete and sign it. The form gives more information about the circumstances of the death.
  • a Permission to Cremate form (Form F) – you’ll need to get this signed by the “medical referee” from the local council or private operator that runs the crematorium, and you’ll need to show them the completed Forms A and B (see above). The medical referee is a doctor, and their approval is a final precaution that the cause of death has been determined and there’s no reason why the cremation can’t go ahead. There’s usually a charge for the medical referee’s services, but this may already be included in the cremation fee.

You’ll need to give all these completed forms to the crematorium manager or sexton on the day of the cremation.

Paying for the cremation

You’ll need to pay the council the cremation fee immediately or show them proof that Work and Income or ACC will pay for it through a funeral grant (see in this chapter, “Financial support for bereaved families”).

In Porirua, for example, a cremation costs $500 for an adult, and $325 for a child aged under 11.

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