Deciding how to dispose of a person’s body after death can be an emotionally charged time for many families, whose members may have diverging views about the most appropriate way to honour their loved ones. If a body is to be cremated, the divisible nature of ashes can lead some family members to seek a portion of the remains so that they may honour the deceased in their own way.
Community opinion can vary on this topic. Some are not phased by dividing the ashes of their loved ones, whilst others may strongly object. The question arises: how does the law reconcile the competing interests of family members when there is an argument about the division of ashes?
“The calm serenity that surely accompanies the eternal sleep of death deposits in its earthly wake the potential for a calamitous dispute between those left behind: what to do with the deceased’s body?”
Brian L Josias, ‘Burying the Hatchet in Burial Disputes: Applying Alternative Dispute Resolution to Disputes Concerning the Internment of Bodies’ (2003 – 4) 79 Notre Dame Law Review 1141, 1141.
The general position at law is that human remains are not property. Accordingly, your body cannot form part of your estate or be distributed in accordance with your will. However, the courts have held that human remains may become property in certain circumstances, namely when somebody has mixed their labour with the body so as to convert it into property.
The High Court of Australia confirmed this in the 1908 case of Doodeward v Spence. This means, for example, that human tissue samples taken by a pathology clinic would become the property of the clinic.
Australian courts have adopted similar reasoning when it comes to human ashes – that is, by the cremator applying labour to the body to transform it into a preservable state, the ashes become property and may be dealt with as such. Accordingly, ashes are capable of being owned and transferred.
This general position is subject to three caveats:
- If the ashes are scattered or otherwise lose their physical characteristics as ashes, they cease to be property.
- While they are capable of being property, ashes do not form part of the deceased’s estate and cannot be distributed under a will.
- The courts have held that, while ashes are capable of being property, they are still human remains and their owner should treat them with an appropriate level of respect and reverence.
Who has the right to possess the ashes?
Since they do not form part of the deceased’s estate and are incapable of being disposed of under a will, the right to possess the ashes automatically vests in the executor of the estate. However, the executor does not have a proprietary right over the ashes (i.e. they do not own them outright). Rather, the executor holds the ashes as trustee for the purpose of disposing of or dealing with them in an appropriate manner.
When determining what an appropriate manner of disposal of the ashes is, the Australian courts have held that the executor ought to consider the following factors:
Ultimately, however, the executor has the final say over what happens to the ashes and is well within their rights to “distribute” the ashes to themselves.
If the executor elects to give the ashes to someone else, it is at that time that the proprietary rights in the ashes crystallise and that person becomes their owner.
What can you do if you do not approve of how the executor of the estate is proposing to dispose of the ashes of a loved one?
Since the executor has the final say over the manner in which the ashes are disposed, no other stakeholders (e.g. relatives) have any specific rights to direct how this should be done. Furthermore, the various State Supreme Courts do not have an express power to order that ashes be disposed of in any particular way.
Despite this, the Australian courts have held that the power to order an executor to dispose of ashes in a particular way is implied under the general power of the various State Supreme Courts to direct the executor of an estate to do or refrain from doing any act.
That they have such a power has been expressly affirmed by the Supreme Courts of both Victoria and Queensland. On each of these occasions the court ultimately declined to make an order directing the executors to divide the ashes. Nevertheless, the courts have left the door open to making such an order in future, should the appropriate circumstances arise.
Avoiding a dispute
In order to avoid your remains from becoming the subject of an uncomfortable family dispute, it may be necessary to have the uncomfortable conversation with your family to make your intentions for disposal of your body known.
Finally, it is best to record your intentions with respect to your body in your will. Even though your testamentary wishes with respect to the disposal of your body are not binding on the executor, they are strong evidence of your intentions of which the executor would be loath to ignore.