Disagreement relating to the division of estate assets is unfortunately common place in the estate litigation world.  However, what is the position where there is debate about what happens to the body of a loved one?  Considerations such as the location of the resting place or whether to have the body buried or cremated can give rise to disagreement.  

Deciding how and where to dispose of a loved one’s body is a personal decision often made by family or friends at a difficult time.  People can hold different beliefs, feelings and wishes about the process which can lead to conflict which needs to be resolved often in a short period of time.  This is further enhanced when the deceased has not expressed their wishes in relation to place of resting, burial or cremation or where there is conflicting evidence as to what their wishes were.

The position at law is that the executor (or administrator if there is no will) has authority to organise the funeral and determine how the person’s body is disposed of.  It is a well-established principal that there is no property in a dead body.  Often people include directions in their will about how they want their body dealt with.  These are not binding except where the deceased has left signed instructions to be cremated.  These instructions bind the deceased’s personal representative and their right to decide how to dispose of the body is qualified as they must make an application for permission to cremate.  If the permission is issued, a cremation must take place in accordance with the signed instructions. 

If no signed instructions are left and a spouse, adult child, parent of the deceased or personal representative of the deceased objects to the executor’s (or administrator’s) choice to cremate a doctor must not issue a permission to cremate and the person in charge of a crematorium must not allow a deceased’s remains to be cremated.   If a cremation cannot lawfully be carried out, the personal representative’s freedom to choose is thereby restricted. 

The Supreme Court of Queensland recently had cause to consider these issues in the matter of Laing v Laing [2014] QSC 194.   In that case the deceased’s three adult children and the deceased’s second wife of short duration disagreed as to how the deceased’s body should be disposed of (the second respondent was the Public Trustee as executor of the will).  

The children wished for the deceased to be buried in Canberra in a plot the deceased had purchased during his lifetime next to his first wife who passed away some years before.  The second wife sought to cremate the deceased in Queensland.  The court was asked to determine whether the body should be released to the children for the purpose of burying the deceased.

The deceased was 84 years old at the time of death.  He married his first wife in 1960.  They were married for 42 years, until 2002 when she passed away.  The deceased and his first wife had three children together.  He visited his wife’s grave every Friday for many years and frequently expressed to this three children that he wished to be buried next to her in the grave site he had selected.  The deceased maintained a close connection with Canberra; they moved there in 1972 and the deceased remained until he moved to Queensland in 2012 with his second wife.

The deceased was a highly intelligent and educated man who worked as lawyer throughout his life, including in the Attorney-General’s department for many years.  His children described him as capable and able lawyer, a prudent and conservative man and a devoted and loving husband and father.

From about 2006 he began to exhibit uncharacteristic behaviour.  He was said to have made large cash gifts to people he had just met, in particular young female prostitutes.  In the years before his death he depleted a substantial portion of his estate.  He also made many marriage proposals to much younger woman.

The wife’s evidence demonstrated that she met the deceased in late 2010 when he rang her because of her advertisement in a newspaper as a sex worker. They were married on 28 September 2011, one week after her divorce with her previous husband was finalised.  

On 10 May 2011 the Civil and Administrative Tribunal of the ACT appointed the Public Trustee of the ACT as the manager of the deceased’s assets after his concerned children applied for the appointment.  The Public Trustee of Queensland was later appointed as administrator at around the same time the Adult Guardian was appointed as guardian.

As is common with such cases, there were issues surrounding the deceased’s capacity to execute the numerous wills made in the last years of his life.  The last will made by the deceased gifted the whole of his estate to his second wife with a gift over provision to her four children.  It included a declaration that he decided not to make any provision for his own three children.  That matter was not determined in this application.

The Court, after considering the evidence, determined that the deceased’s body be released to the children for burial in Canberra.  The following factors were persuasive:

  1. The deceased lived almost all his adult life in Canberra;
  2. The deceased raised a family there;
  3. The deceased had a wife there for almost 40 years and when she died in 2002 she was buried in a cemetery plot which was purchased by him on the basis that there were two plots side by side for him to be buried beside her;
  4. There was no question that he was at that time able to make a rational and considered decision as to where and how his body would be interred;
  5. The decisions made by the ACT and QLD Civil and Administrative Tribunal and the evidence before the court demonstrated that he was unable to make properly considered judgments later in life;
  6. The deceased’s hostility towards his children was considered both irrational and encouraged by his second wife;
  7. The deceased’s residence in Queensland was very short in duration and he had no family or friends there apart from his second wife and her family; and
  8. The children indicated that they will visit their father’s grave in Canberra and will continue to tend to the gravesite as they have done for years since their mother died.

Atkinson J made orders that the body of the deceased be released to his son for the purpose of the funeral and subsequent burial in the ACT and that a grant of representation of the deceased’s estate was made to the Public Trustee of Queensland which was limited to collected the estate, paying the debts and preserving the estate until further order.

Disputes such as these are financially and emotionally costly on family members.  In an effort to prevent such disputes it is beneficial to ensure that your affairs are in order.  The McInnes Wilson Lawyers Estate Team can provide assistance in ensuring your estate planning is up to date as well as provide advice if you find yourself in a similar situation.