Who owns your body once you pass away?

A young father passed away and his partner of many years, who was the Executor of his Will, ran into trouble with his extended family regarding his dead body, as they had different wishes to what the deceased did as to where he should be buried.

Under New Zealand law there is no property in a dead body. This means there are quite a few interesting cases regarding “stolen” dead bodies, as it is not possible to steal something that is not owned.

The principle that there is no property in a dead body comes from an old English case where the deceased had directed his Executors in a Codicil to his Will to give his body to a  Miss Williams who he had told, in a letter, to cremate his body in a particular way.

The Executors did not follow the direction to give the deceased’s body to Miss Williams and instead had him buried. In order to follow the deceased’s wishes Miss Williams dug up the deceased’s dead body and arranged the cremation as she had been asked to do by the deceased.

She then sought the cremation expenses from the estate.  Instead of being rewarded for adhering to what the deceased wanted, she was told that as there was no property in a dead body and directions given regarding remains by the deceased are not enforceable so she was not entitled to seek reimbursement from the estate for any costs for the cremation (note that the funeral expenses are usually paid from the deceased’s estate).

So despite Miss Williams doing exactly what the deceased wanted it was unlawful and she was left out of pocket.

New Zealand law is that there is no ‘property’ in the human body as such.  While any directions you make to your Executor regarding your dead body in your Will are not binding on anyone, as your dead body is not property that you can deal with, you can let your Executor know what your preferences are regarding being buried or cremated, where you want your final resting place to be, and wishes regarding donation of any organs or body parts for grafting, transplant or medical research purposes.

The person who is entitled to custody of your body after you die, and whose job it is to see to your burial or cremation, is the Executor in your Will.  We therefore recommend that when choosing the Executor of your Will you make sure it is someone who is likely to uphold your wishes regarding your funeral and burial and who has similar values and views to you.   

In the above example, the deceased’s partner, as the Executor, was able to override the family on the basis that it was her role to see that the deceased was buried where he wanted to be buried.

The directions in your Will can be quite simple or quite complex – it is up to you.

We do recommend you keep your wishes realistic and relatively simple (for example, there can be some issues with scattering ashes in certain places).

You should also make sure your family is aware of what these preferences are as sometimes the Will is looked at after any celebrations of life/funerals (which can cause some upset if they did something quite different and had wanted to respect your wishes had they known them).

Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.

Andie Donnelly

Wills and Estates Lawyer
Wellington