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Disputes over Funerals and Burials A PAPER BY PAUL ANDERSON MAY 2009


Disputes over Funerals and Burials

Summary Entitlement to arrange a deceased’s funeral rests with the executor named in his Will or, if there is no Will, the person best qualified to obtain a grant of administration. If there is more than one person equally qualified to obtain a grant of administration, the practicalities of burial without unreasonable delay will decide the issue.

Who Does This Impact? Families of deceased persons.

What Action Should Be Taken? Families should make burial arrangements in accordance with the established principles.

Contents:

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Facts

2

Legal Principles

2

Decision

2

Prior Decisions

3

Smith v Tamworth City Council

3

Burrows v Cramley

4

Conclusion

4

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Disputes over Funerals and Burials by Paul Anderson

The recent decision of the Supreme Court of Western Australia in Reece v Little has again considered at a first instance level the question of who is entitled to make burial and/or funeral arrangements for a deceased person.

Facts The deceased was an Aboriginal man aged 32 who died of a heart attack. The parties to the litigation were his mother, who wished to have his body buried in Geraldton and the deceased’s alleged de facto partner, who wished the burial to take place in Mt Magnet where she and her children by the deceased lived. The deceased did not have a Will.

Legal Principles Templeman, J set out the following well established principles: •

There is no property in a dead body i.e. no one can own the body of a deceased person.

If the deceased has made a Will and named an executor, the executor named has the right to arrange the burial of the deceased’s body.

If the deceased has died without making a Will and has left an estate, the person entitled to a grant of administration of the estate is usually the person responsible for the burial of the body. As the burial usually takes place before there is a grant of administration, the court attempts to identify the person who is most likely to obtain the grant of administration. Although this is the usual approach, it is not a principle of law but ‘it would have to be an extremely rare case to depart from the usual approach’. (Burrows Burrows v Cramley Cramley)

Even if the deceased’s estate is small so that a grant of administration is unnecessary, the Court will still consider who would be the person best qualified to obtain a grant.

Decision The judge reviewed all the evidence and determined that, although the deceased and the defendant separated for periods while he sought work or as a result of arguments, the parties were still in a de facto relationship for the period of two years prior to his death. This meant that under the Administration Act 1903 (WA) the defendant had a higher qualification than the plaintiff to a grant of administration and, therefore, to burial rights. However, the judge also considered whether there were other factors present which would make it appropriate to depart from this conclusion. Such factors included: •

The deceased’s wishes;

Cultural matters i.e. Aboriginal custom;

The deceased’s connection with Geraldton;

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Disputes over Funerals and Burials by Paul Anderson

The deceased’s connection with Mt Magnet; and

The wishes of his children.

In the result, the judge concluded that there was no reason to depart from the usual approach i.e. the wishes of the defendant, as the person best qualified to obtain a grant of administration, should override the wishes of the deceased’s mother.

Prior Decisions The 1992 decision of the Supreme Court of the Northern Territory in Calma v Sesar dealt with not dissimilar facts. The question was whether the remains of a deceased who died age 21 should be committed to the plaintiff, his mother, for burial in Darwin, or to the defendant, his father, for burial in Port Hedland. The deceased and his parents were all of Aboriginal descent. The parties had been in a de facto relationship but had separated ten years previously. The plaintiff had been living in Alice Springs for some years. The deceased was born in Port Hedland but had been living in Alice Springs since October 1990. He had only been in Darwin a few weeks prior to his death. The deceased did not have a Will. The difficulty was that each parent had an equally valid entitlement to a grant of administration. After reviewing all the evidence, including the family history and cultural matters, the presiding judge, Martin, J took a highly practical approach: We note the body of the deceased was in Darwin. Proper arrangements had been made for burial here. There was no good reason in law why that should not be done and no good reason in law why the removal of the body from the territory and burial in Western Australia was to be preferred.

Smith v Tamworth City Council This was a decision of Young, J of the Supreme Court of New South Wales in 1997. The biological parents of a deceased person brought proceedings against the local council which controlled the cemetery where the deceased was buried, seeking to have title to the plot in which the deceased was buried transferred from the name of his adoptive mother to them. The deceased was living in a de facto relationship with one, Leanne, and had a daughter by the relationship. As far as relevant to the present case, the judge listed the following principles: •

1: If a person has named an executor in his or her Will and that person is ready, willing and able to arrange for the burial of the deceased’s body, the person named as executor has the right to do so.

4: Where no executor is named, the person with the highest right to take out administration will have the same privilege as the executor in proposition 1.

5: The right of the surviving spouse or de facto spouse will be preferred to the right of children.

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Disputes over Funerals and Burials by Paul Anderson

• •

6: Where two or more persons have an equally ranking privilege, the practicalities of burial without unreasonable delay will decide the issue. 7: If a person dies in a situation where there is no competent person willing to bury the body, the household where the death occurs has the responsibility of burying the body.

8: Cremation is nowadays equivalent to burial.

9: A person who expends funds in burying a body has a restitutionary action to recover his or her reasonable costs and expenses.

Section 35 of the Adoption of Children Act 1965 provides that once a child has been adopted, the adopted child becomes the child of the adopting parents and ceases to be the child of the biological parents. As a result, the defendant had a superior claim to a grant of administration and was entitled to determine funeral arrangements. The only person with a superior claim to administration was Leanne and she had acquiesced in the arrangements made by the defendant.

Burrows v Cramley This was a WA Supreme Court decision decided in 2002. The deceased died in a motor vehicle accident just short of his eighteenth birthday. He did not leave a Will. He was unmarried and did not live in a de facto relationship and he had no children. The litigation was between his mother who wanted to bury him in Perth and his father, who wanted to bury him in Sydney. The judge, Pullin, J began by adopting the statement of legal principles set out by Young, J, in Smith v Tamworth City Council and quoted above. In this case, the parties had an equal entitlement to a grant of administration being the parents of the deceased. This meant that the practicalities of burial without unreasonable delay would decide the issue. His Honour reviewed in detail the various factors submitted by each party but ultimately decided that the funeral should take place in Perth and that the deceased’s mother should have carriage of the funeral.

Conclusion A series of inherently sad cases have been decided by a number of single judges over the past decade in circumstances of considerable time pressure. However, despite time pressures, relevant legal principles have clearly emerged and are now well established. The person entitled to a grant of probate or the person best entitled to a grant of administration is also entitled to arrange the funeral. Where the contest is between two persons who each have an equal entitlement to a grant of administration, the practicalities of burial without unreasonable delay will determine the issue.

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Disputes over Funerals and Burials by Paul Anderson

For more information, please contact:

Paul Anderson Partner T: 02 8257 5742 paul.anderson@turkslegal.com.au

Sydney | Level 29, Angel Place, 123 Pitt Street, Sydney, NSW 2000 | T: 02 8257 5700 | F: 02 9239 0922 Melbourne | Level 10 (North Tower) 459 Collins Street , Melbourne, VIC 3000 | T: 03 8600 5000 | F: 03 8600 5099 Insurance & Financial Services | Commercial Disputes | Workers Compensation | Business & Property

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Disputes over Funerals and Burials  

Entitlement to arrange a deceased’s funeral rests with the executor named in his Will or, if there is no Will, the person best qualified to...

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