Estate of Fitzgerald
[2023] NZHC 405
•6 March 2023
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
CIV-2022-485-59
[2023] NZHC 405
IN THE MATTER OF The Estate of Kathleen Margaret Fitzgerald BETWEEN
HANNAH ROSE FITZGERALD of
Melbourne, Australia and DAVID
CHARLES NEWELL of Whanganui, New Zealand as Executors of the Will of
KATHLEEN MARGARET FITZGERALD
ApplicantsAND
TERENCE JOHN SMITH
Respondent
Hearing: 8 February 2023 Appearances:
G J C Carter and Ms G L Duncan for Applicants G P Mason for Respondent
Judgment:
6 March 2023
JUDGMENT OF CULL J
[1] Who has a right to possess the ashes of a deceased person? Kathleen Fitzerald (the deceased) appointed her daughter Hannah Fitzgerald (Hannah) and Mr Newell as the executors of her estate. They seek a declaration that they, as executors, have the right to possess the deceased’s ashes. The respondent is the deceased’s husband of 22 years, Terence Smith (Mr Smith). He opposes the executors, claiming he has the right of possession.
EST OF FITZGERALD: Fitzgerald v Smith [2023] NZHC 405 [6 March 2023]
Background
[2] The deceased died on 22 January 2022. She made a Will dated 10 August 2018, naming her daughter, Hannah as her sole beneficiary. She directed that her body be cremated and that the cremated remains of all pets which had predeceased her should be interred together with her remains. At the time of her death, neither Hannah or Mr Smith were aware of the deceased’s Will.
[3] Mr Smith, with the agreement of Hannah, applied for cremation following the death of the deceased.
[4] Following the cremation, the crematorium returned the ashes to Mr Smith, as he instructed. The “ashes instruction sheet” from the crematorium noted:
Ashes instructions Return to Terry. He may return to us to send to
Hannah in Melbourne at a later date.
[5] Mr Smith and Hannah were in telephone contact before Hannah came to New Zealand in March. They agreed that her mother’s ashes were to be scattered in Northern Ireland.
[6] Despite the amicable “frequent contact” between them by telephone, on 18 February, there was a marked change. Hannah had made arrangements to come to New Zealand in March and stay with friends. Mr Smith told her that she could not take her mother’s ashes and that they would not be there when she arrived. Hannah texted Mr Smith saying she did not want a fight over the ashes but they could discuss it when she arrived in New Zealand.
[7] On 2 March 2022, Mr Smith learned of the content of the deceased’s Will and that he was not a beneficiary. He contacted Hannah to discuss the Will but she did not wish to talk to him about it.
[8] On 16 March, Hannah arrived in New Zealand and went to collect her mother’s ashes and personal belongings from her family home. Mr Smith refused to provide the ashes to Hannah. He had already arranged for the urn containing them to be stored away from the house. Instead, he placed river sand in an urn and left it in a white bag
on a bed with Hannah’s belongings and told Hannah the sealed bag contained her mother’s ashes.
[9] On 22 March, Hannah returned to her family home to discuss with Mr Smith her wish to take the ashes back to Melbourne with her as she was close to her mother. The interaction was not polite. As a result, Hannah took the white bag and her belongings and was told by Mr Smith not to return.
[10] Over the next two days, Hannah became aware through her mother’s best friend that the ashes were not real. She returned to the house, after visiting the estate lawyers for advice, to look for the ashes. Mr Smith later confirmed by text that she did not have her mother’s ashes.
[11] Between 25 March and 30 May, an unfortunate exchange of threatening texts from Mr Smith and correspondence from the estate’s solicitors ensued, resulting in Court proceedings being taken by the executors, seeking injunctive relief to obtain possession of the ashes. The procedural history of the Court proceedings to date is set out below.
[12] Following this event and the subsequent discovery that the urn Hannah had collected did not contain her mother’s ashes, no agreement has been reached between the executors and Mr Smith as to who should retain possession of the deceased’s ashes until their disposition. It is agreed however that the deceased’s ashes should be scattered in Northern Ireland, as the deceased wished.
Procedural History
[13] As a result of Mr Smith’s refusal to advise his intention over the disposal of the ashes, these proceedings were issued.
[14] On 13 July 2022, the executors made a without notice application for an interlocutory injunction preventing Mr Smith from dealing with or disposing of the ashes and requiring him to deliver the ashes to Mr Newell.
[15] On 18 July 2022, Ellis J granted the injunctive relief, and added a warning to the order. It reads:
Warning
[12] For Mr Smith’s benefit, I make it very clear that compliance with the above interim orders is not optional. Non-compliance constitutes a contempt of Court, from which legal consequences would almost certainly flow.
[13] Moreover, as I have said, the orders are designed to protect his interests while the substantive matter is resolved.
[16]Mr Smith did not comply with the Court’s order.
[17] On 21 July 2022 the Applicants filed a contempt application to enforce the orders of Ellis J. On 22 July 2022, in dealing with the enforcement application, Gwyn J amended the orders of 18 July 2022 to protect the interests of Mr Smith, as well as the Applicants’ interests, by ordering that Mr Smith instead deliver the ashes to the custody of his counsel, Mr Mason through his instructing solicitors McIntosh & Signal.1 Mr Smith complied with these orders.
[18] On 23 August 2022, Gwyn J directed that the parties file an agreed memorandum with a summary of facts and the issues to be resolved by the Court. The parties could not agree on a summary of facts. Filing a joint memorandum on 29 September 2022, the parties did agree on two issues for final resolution:
(a)Do the executors have the right to determine how the deceased’s ashes are stored and scattered?
(b)If the executors do not have this right and the disposal of the ashes falls to be determined by the Court, how should the ashes be stored, transported and scattered?
[19] Since the filing of that joint memorandum the parties’ positions changed. The parties agreed that there should be separate hearings to address the issue of possession
1 Minute of Gwyn J (amended orders) (22 July 2022).
of the ashes and subsequently, in the absence of agreement among the parties, how the disposal of the ashes, including their transport to Northern Ireland, should occur.
[20] Mr Mason, after initially agreeing to this approach, indicated at the beginning of this hearing that his position had changed and that both issues should be addressed. I declined to do so as the matter had been set down for one day only, and to address the disposition issue cross-examination was required of Hannah and Mr Smith. Further, the parties had not addressed the disposition issue in their submissions.
[21] Mr Smith has also taken steps to contest the deceased’s Will in the Family Court, by way of Family Protection proceedings. At the time of the hearing, although the proceedings had been filed in the Family Court, the executors were yet to be formally served. Mr Mason clarified that the challenge was not to the validity of the Will or the directions as to cremation but rather, the lack of provision made for Mr Smith.
[22]The sole issue before this Court for determination is:
(a)Who has the right to possess the deceased’s ashes, prior to their disposition – Mr Smith or the executors?
Parties’ Positions
The executors
[23] The executors seek a declaration that they have a right to possess the deceased’s ashes for the purpose of determining their disposition which, absent agreement, may require a further direction from the Court. They rely on the majority decision of the Supreme Court in Takamore v Clarke (Takamore).2 Although Takamore involved the duty and rights relating to the disposal of a deceased human body, the executors submit that the same reasoning of the majority applies to the ashes of a deceased person. Thus, they say, the common law rule applies to human remains, whether the deceased is buried or cremated, and that gives the executors a right to possession and to decide where and how they possess the ashes. While Hannah wishes
2 Takamore v Clarke [2013] 2 NZLR 733, [2012] NZSC 116 (Takamore).
to hold the ashes in Melbourne, where she resides, before taking them to Northern Ireland for scattering as her mother wished, the executors will take into account the views of any aggrieved person as to the way in which the disposition or scattering of ashes takes place.
Mr Smith
[24] Mr Smith argues that as he is the “near relative” who applied for the deceased’s cremation and by virtue of receiving her ashes, he has the right to possess them under reg 8(1) of the Cremation Regulations 1973 (the Regulations). As the ashes were delivered to him, Mr Smith contends that under reg 8(1), they became his property.
The law
[25] The issue of the possession of deceased’s ashes is a question of law. The executors rely on the principles of common law upheld by the majority of the Supreme Court in Takamore and Mr Smith relies on the Regulations.
Common law principles in Takamore
[26] The appeal in Takamore concerned a claim by Mr Takamore’s partner for orders for the recovery by her of his body. Mr Takamore was buried without her consent by members of his Whakatohea and Tuhoe family in the Bay of Plenty in accordance with the tikanga observed by their hapu. His partner was appointed executor by Mr Takamore in his Will and was successful in the High Court and Court of Appeal in her claim to be entitled as executor to determine where Mr Takamore was buried. The appeal was taken by the sister of Mr Takamore.
[27] The majority held that where there is no agreement among family members and executors, or where arrangements have broken down, or nothing has happened with the body of the deceased, there is a common law rule that the personal representative has the common law duty to attend to the disposal of the body and the right to possession for that purpose.3
3 At [154].
[28] In reaching their decision, they were satisfied that there is a common law rule under which personal representatives have both the right and duty of the disposal of the body of the deceased. In this finding, they departed from the then Chief Justice’s view that executors merely have a privilege, along with members of the deceased’s family and others, to arrange burial or cremation.4 Elias CJ considered the executors have no over-riding duty or right to do so.5
[29] The majority found that the common law rule placing a right and duty on the executors has been established by the New Zealand authorities, which the Court traversed, drawing on the decisions of courts in other jurisdictions, addressing a variety of factual situations. In Jones v Dodd6 the majority found that the common law rule was endorsed and has been built on experience over many years taking into account perceived social necessities and changing public policies.7 It requires the personal representative to take into account different cultural, religious and spiritual practices as well as the views of the immediate and wider family. They say:8
In particular it has been developed by requiring the personal representative to take into account different cultural, religious and spiritual practices as well as the views of the immediate and wider family. Such development is consistent with the relevant statutory context in New Zealand.
[30] The majority held that in New Zealand the existence of a common law rule in this form is well established.9 They approved the continuation of the rule as to the personal representative’s role as highly desirable because such a rule provides for a person with authority to make decisions, and as such, is both practical and convenient, avoiding a necessity for Court action.10 In that way, they considered the rule would often serve the desirability of expedition in a matter which is the occasion of feelings of great grief and loss, while allowing relevant matters to also be addressed.11
4 At [151]-[152].
5 At [90].
6 Jones v Dodd [1999] 73 SASR 328 at [136].
7 Above n 2, at [152].
8 At [152].
9 At [152].
10 At [153].
11 At [153].
[31] Where no executor has been appointed or none is available or willing to act, the majority considered the right to decide becomes that of the person who is the potential administrator, being someone who has the priority right to claim administration under New Zealand law.12 In particular, the personal representative is likely to be in as good a position as anyone to decide on the manner of disposal, having regard to all relevant matters, including the means of the estate which will usually bear the cost.13
Burial and Cremation Act 1964
[32] Burial was the standard English practice for well over a millennium, reflecting one view of the Christian belief about bodily resurrection. Cremation was unlawful.
[33] The right to cremate a body gained statutory recognition in the United Kingdom by the Cremation Act 1902. In New Zealand, the Cemeteries Act 1882 did not contain provisions about cremation, but permitted a person’s body after death to be disposed of by burning the same to ashes, instead of by burial in the earth. Again, the statute noted that: 14
…the executor or executors of such person may carry into effect such direction: Provided that such burning shall be conducted in a manner which shall not create any public or private nuisance.
[34] The Burial and Cremation Act 1964 is the prevailing statute in New Zealand. Section 37(1) provides:
(1) Without prejudice to the power to make regulations conferred by section 59 the Governor-General may from time to time, by Order in Council, make regulations controlling or restricting the establishment and closing of crematoria, prescribing the conditions subject to which and the manner in which cremations are to be carried out, and providing for all matters incidental thereto.
[35] Section 37(4) of that Act is the empowering provision to make regulations, being secondary legislation as the Legislation Act 2019 provides.
12 At [155].
13 At [155].
14 The Cemeteries Act 1882, s 82.
[36] Of relevance to this proceeding are Regulations 5(1), (2) and (3) of the Cremation Regulations 1973. They provide:
(1)No cremation shall be carried out unless application therefor has been made in form A of Schedule 1 and the information indicated in that form has been duly furnished and the form has been duly signed.
(2)Subject to subclause (3), the application shall be signed by an executor or a near relative of the deceased person.
(3)The application may be signed by a person other than a person referred to in subclause (2) if the crematorium authority is satisfied that that person may reasonably make the application and that sufficient reason is given on the application why it is not signed by an executor or a near relative.
Regulation 8(1) provides:
(1) After a cremation the crematorium authority may deliver the ashes into the charge of the person who applied for the cremation if he makes application in that behalf.
[37] The issue is whether the Cremation Regulations take precedence over the common law rule. Who has the right to possess and dispose of ashes: the executor or the person who applied for the cremation?
[38] The initial question is, what meaning is to be given to the word “charge” in reg 8(1) from the phrase “into the charge of the person.”
The regulatory wording
“Into the charge” of a person
[39]Mr Mason submits that the relevant definition of “charge” is:15
The duty or responsibility of taking care of a person of (a personal thing); peer, custody, control, superintendents.
[40] Because of the wording of reg 8(1), Mr Smith as the applicant applying for cremation, contends that he was given the duty or responsibility of taking care of the deceased’s body and his receipt of the ashes gives him the right to possess and dispose of them.
15 Shorter Oxford Dictionary (6th ed, Oxford University Press, Oxford, 2007).
[41] Do the Regulations authorise the person “in charge” to dispose of the ashes? The statutory background of the Burial and Cremation Act was canvassed by Elias CJ in Takamore who examined the words “having charge of a body”.
[42]The summary of the position is set out at [40] of the judgment of Elias CJ:
The Act does not, however, specify who has the authority to determine the manner of such disposal or removal. Under s 46E “[a] person having charge of a body” must dispose of it “within a reasonable time of taking charge of it” or arrange for disposal or transfer the body to someone else for disposal. This provision replaces a similar one formerly contained in s 39 of the Births, Deaths, Marriages, and Relationships Registration Act 1995. It enacts the duty formerly imposed as a matter of common law upon those having custody of a body to attend to prompt disposal. “Having charge of a body” is not further defined or explained and seems from the content of s 46E to refer simply to the fact of physical control at any time.
[43] In essence, as Elias CJ finds, “having charge of a body” is not further defined and merely refers to physical control or indeed custody at any time.
[44] I consider the regulatory wording of “into the charge of the person” means no more than the physical custody at any one time. Nothing more can be read into those words or indeed the regulation itself.
Ashes v body
[45] The second issue is whether ashes can be regarded as a body. That is, whether there is a difference between ashes and bodily remains. Should a different course be followed in this case to the approach in Takamore? Notably, none of the Judges acknowledged any real distinction between burial and cremation in terms of the right to custody and disposal of the remains. William Young J however referred to disposal, including cremation, as burial.
[46]Under s 2, the following definitions apply:
body means a dead human body …
cremation means the reduction to ashes of dead bodies by burning
disposal includes burial and cremation
[47] On the interpretation of “body”, “crematorium” and “disposal” under the Burial and Cremation Act 1964, a distinction between burial and cremation is unsustainable, particularly as “disposal” includes burial and cremation.
[48] I am unable to uphold Mr Mason’s argument that “ashes,” not being separately defined, must be treated differently to “bodily remains”. From the definitions referred to above, I consider it is plain that the burial of a body and the cremation of a body equate to the same outcome, namely, disposal. Once a body is dead, then there are two options for its disposal. Cremation or burial.
[49] The fact that cremation results in ashes does not, in my view, distinguish it from a body being buried. They are still the remains of the deceased person, only in a different form. I cannot sustain the argument that there is a difference between them.
[50] I deal then with the question of whether the common law rule prevails over the Regulations.
Does the common law rule prevail over the Regulations?
[51] Mr Mason contends that regardless of whether ashes are equivalent to a body, the common law does not take precedence over the Burial and Cremations Act 1964 and the Regulations made thereunder. Whilst acknowledging that the Regulations are secondary legislation, Mr Mason contends that the legislation in the form of regulation takes precedence over the common law rule in Takamore. He says that there is no basis for putting a gloss on the Regulations to mean that the person who applied for the ashes is subject to the overriding rights of the executors.
[52] I cannot uphold Mr Mason’s submission. The extent of the Regulations does not import the rights and duties of an executor in my view. The Regulations govern the ability of a relative, if an executor is not available, to apply for cremation. Receipt of the ashes is the result. The form, which was signed on Mr Smith’s behalf by the funeral home but which he completed, is evidence that the crematorium wished to ensure that the applicant had authority to make the application and in particular whether the executor had agreed. The application for cremation provides:
No.4 If the application is not made by an executor, is there an executor of the deceased? If there is an executor have they been informed of the proposed cremation?
No.5 To the best of your knowledge and belief has any near relative or executor of the deceased expressed any objection to the proposed cremation?
[53] This reinforces that the Regulations do not determine who has a right, responsibility or duty over the deceased’s ashes, but rather that, as a matter of immediacy on the death of a person, there is no disagreement from the executors to cremation. It is pertinent, in my view, that the ashes instructions read, “return to Terry, he may return to us to return to Hannah in Melbourne at a later date.”
[54] The Regulations clearly fall short of vesting absolute rights of possession or disposition of a deceased’s remains in the person who applies for cremation. The gap, which the common law has addressed, is clearly articulated in Takamore.
[55] The essence of Mr Smith’s argument is that as he contacted the funeral home (with Hannah’s knowledge) and complied with what he understood as the requirements to authorise the cremation, it would be “technocratic and formalistic” not to regard Mr Smith as the applicant due to any irregularity in the funeral home signing the application form. Putting aside the irregularity of the signature, this argument appears to amount to a claim based on reg 8(1), that the ashes then became his property.
[56] Mr Mason accepts that there is no property in a body but he argues that ashes are not a body. This contention amounts to a proposition that while there is no property in a body, there is property in the ashes. I reject that proposition. I consider it is clear that is not the ratio of Takamore. There is a longstanding common law rule that there is no property in a dead body16 but that the executor has rights of custody of the body for the purpose of disposition.17 That rule must apply, irrespective of the form of the deceased’s remains.
16 Williams v Williams (1882) 20 Ch D 659; Smith v Tamworth City Council (1997) 41 NSWLR 80; Murdoch v Rhind [1945] NZLR 425 (SC).
17 Takamore, above n 2, at [113]-[117].
[57] In the alternative, Mr Mason submits that if the Court concludes that this was an unlawful cremation, due to “a lacuna in the statute owing to spotty compliance with the regulations” (i.e., because the application was signed by the funeral home) the Court should recognise the right to the ashes, consistent with the intent of the Regulations and hold that the person who in fact applied for the cremation is entitled to be in charge of the ashes. To depart from the Regulations, he says, “could invite a great deal of energy and attention being given to compliance with the Cremation Regulations where no issue has existed until now”.
[58] For the same reasons I have canvassed above, I do not uphold Mr Mason’s alternative submission that the Court should recognise an applicant’s right to the ashes. Nor do I find that the cremation was unlawful. Mr Smith organised the cremation with the knowledge and agreement of the executors in circumstances where Hannah could not return to New Zealand in person. There is no unlawfulness or invalidity. But I find that the receipt of the ashes resulting from Mr Smith’s position as applicant is subject to the overriding rights of executors, as the majority in Takamore found.
[59]I find the executors have the right to custody of the deceased’s ashes.
The executors’ powers
[60] If successful on the issue of possession of ashes, the executors have asked whether directions can be given as to where the ashes can be kept before disposal, i.e., in New Zealand or with Hannah in Melbourne. I turn then to consider whether the Court can direct executors how to exercise their discretion in disposing of a deceased’s ashes.
[61] Under the Trust Act 2019, trustees are given the power of an absolute owner in relation to managing the trust property and in their dealings with it.18 While that is a broad power, the trustees are constrained in the exercise of their powers by their duties to the beneficiaries. The trust instrument may also limit the trustee’s power.19 In
18 Trusts Act 2019, s 56.
19 See Nicola Peart (ed) Brookers Family Law— Family Property (looseleaf ed, Thomson Reuters) at [TU56.04]-[TU56.05].
Gordon v Attorney-General,20 the Court approved a variation of a trust deed, where a testamentary trust prevented the sale of the deceased’s family home. The Court approved the variation to enable the trustees to sell the home for two reasons. It was in the best interests of the beneficiaries and it was likely on the evidence that the Will maker would have authorised the sale if he had been alive.
[62] The duty owed by the executors is to the beneficiaries of the Will and they must carry out the deceased’s wishes. Here, the executors were appointed by the deceased and Mr Smith was neither an executor nor a beneficiary but is a family member.
[63] More recently, Venning J summarised the executor’s powers in dealing with the wishes of the immediate family: 21
An executor of a deceased person has first rights to custody of the body and has a duty to either cremate or bury it. The manner of dealing with the body is at the discretion of the executor, although in practice executors consider the wishes of the immediate family and can leave and make arrangements if they appear to be agreed. The executor’s powers become operative if there is no agreement as to what is to be done or arrangements had to be broken down or nothing was happening.
[64] The Court has the power to review the exercise of an executor’s discretion and make its own judgment on whether the decision taken was appropriate. The Court’s review powers only arise where an aggrieved party brings an application in the High Court to challenge a decision made by an executor. Until an aggrieved person brings such an application, the Court does not generally guide the executor’s exercise of discretion.
[65] The issue was discussed in Takamore,22 where McGrath J writing for the majority,23 drew upon the English authority of Williams v Williams, applied in New Zealand in 1945 in Murdoch v Rhind in which Northcroft J recognised that the Court did have discretion to intervene in the exercise of the executor’s discretion in some circumstances.24 Northcroft J did not spell out when intervention would be
20 Gordon v Attorney-General (2010) 3 NZTR 20-029 (HC).
21 Witehira v Ram [2020] NZHC 2326 at [13].
22 Above n 2, at [160]-[162].
23 Tipping, McGrath, and Blanchard JJ.
24 Williams v Williams (1882) 20 Ch D 659; Murdoch v Rhind [1945] NZLR 425 (SC).
appropriate, except to say that matters relating to deceased’s wishes in the particular case, which might have affected the exercise of the Court’s discretion, had not been satisfactorily proved by either party.25
[66] McGrath J went on to discuss the common law position of the manner of burial. It is at the discretion of the executor, having regard to the wishes of immediate family. His Honour said that the common law rule under which executors have both the right and duty of disposal of the body of a deceased “will often avoid anyone going to court over their differences because the parties accept or acquiesce in what the personal representative decides.”26
[67] His Honour added that whilst the executor should “take into account the views of those close to the deceased, which are known or conveyed to him or her,” there is no requirement for the executor to engage in consultation.27 Clarifying the basis on which a Court can intervene under the common law, McGrath J said:28
The review process should be a straightforward one that is capable of providing a prompt decision. But the Court’s approach to review must also respect and permit the recognition of different cultural and other practices, as well as different family and other personal interests within the rubric of the common law decision-making process. We have decided what is required is that the Court must address the relevant viewpoints and circumstances and decide, making its own assessment and exercising its own judgment, whether an applicant has established that the decision taken was not appropriate.
[68] No issue arises here about where the deceased’s ashes are to be scattered. The question of where the ashes are kept before disposal and who attends at the scattering of the ashes are decisions to be made by the executors, taking into account the views of those close to the deceased. As the authorities explain, the ultimate decision is vested in the executors. 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.
25 At 426.
26 At [153].
27 At [156].
28 At [162].
[69] Having found that the executors have the right to custody of the deceased’s ashes in this case, I do not consider it appropriate that the Court directs the executors where the ashes are to be held or how to dispose of them. The executors are ultimately responsible and accountable for their decisions and ultimate actions.
[70] It has been agreed, as noted, that the ashes should be scattered in Northern Ireland. Any further direction at this stage, as to whom should be present at the scattering of the ashes, is not warranted on the restricted nature of this proceeding as it came before me. It is hoped, as Counsel advised, that the parties will be able to reach a resolution, once the issue of the right to possess ashes of a deceased person had been determined.
Conclusion
[71] Accordingly, the deceased’s ashes should be placed in the possession of the executors and held in such place as they consider to be appropriate.
Result
[72]A declaration will be issued in the following terms:
The applicant executors, Hannah Fitzgerald and David Newell, have the right of possession of the ashes of the deceased, Kathleen Margaret Fitzgerald.
Cull J
Solicitors:
BVA The Practice, Palmerston North for Applicants McIntosh and Signal, Feilding for Respondent
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