‘Burial’ rights. Disposing of a deceased’s body: who decides?

By Darryl Browne in Blog on July 28, 2020

The deceased was Wiradjuri  and born in Gilgandra. His mother wanted him buried there. He was living in Newcastle at his death. His estranged wife and eldest children wanted him cremated and his ashes kept where he was living. The court in Milson v Milson [2020] NSWSC 919 was called upon to decide between these rival positions[1]. This was not for the first time; these disputes seem common place[2].

The starting point is that there is no property in human remains. However, the person responsible for administration of the deceased estate – the executor if the deceased left a will and the administrator if the deceased died intestate – is treated as having a prima facie right to arrange the disposal of the deceased’s remains by burial or cremation.

The deceased in Milson died without a will. The Probate and Administration Act 1898 (NSW) identifies the persons to whom the court may grant administration of a deceased’s estate in that situation[3]. Those persons include the spouse of the deceased and/or the next of kin. The Succession Act 2006 (NSW) then guides the determination of the next of kin, being, roughly in this order: the surviving spouse[4], surviving children of the deceased[5] and then the parent of the deceased[6].

So, generally, with an intestate estate the surviving spouse is the preferred person to determine the manner of the deceased’s disposal. Sometimes there can be a dispute about that relationship. The disposal of Melissa Dunn’s remains is an example. She also died intestate. A dispute arose between the father of a child of the deceased and the deceased’s mother over the rights to control the form of disposal of her body.

The issue in Dragarski v Dunn [2019] NSWSC 300 was whether the father of the child was a de facto spouse of the deceased. That wasn’t established on the facts, so the Melissa Dunn’s mother (as the person with the highest rank) was able to make the decision about disposal of her daughter’s remains.

Where there is a dispute, the court may look at factors other than the highest ranking relationship on intestacy in determining who is the best person to make the arrangements for the deceased’s remains. These factors include:

• the nature of the particular relationship with the deceased. This is highly relevant.
• views expressed by the deceased. These are important.
• the views of the deceased’s children. It has been said that these should be given very great weight[7].
• relevant religious, cultural and spiritual matters may also play a role. For instance, specific regard is given to certain practices regarded as important by many Aboriginal people, in particular, the desire to be buried on country (that is, ancestral lands)[8].

In Milson the best evidence was that the deceased wished to be cremated, like his father had been. This coincided with the wishes of his estranged wife, maternal grandfather and his children.

The court granted the wife, for the purpose of a special grant of administration, custody of the deceased’s body and authorisation to arrange the funeral and cremation of the deceased[9].

In Johnson v George [2018] QSC 140 the Court considered that Aboriginal cultural matters and concerns were a relevant consideration in determining the burial of a Wulgurukaba man, whose country was near Townsville. Also, his own wishes to be buried at Charters Towers were considered. The court acted like Solomon and ordered a funeral at Townsville and subsequent burial at Charters Towers.

Patrick Fisher’s father was a Wakka Wakka man from Cherbourg Queensland. Patrick was born in Redfern in 1986, and raised in the Redfern/Waterloo area. He died intestate in 2018. A dispute arose between his de facto wife and mother about whether he should be buried on country at Cherbourg or at the La Perouse/Botany Cemetery, Sydney. The court considered that the relevance of a de facto relationship was minimalised to some extent where there was an indigenous intestacy. Nevertheless, after examining the facts, the Court concluded that the deceased’s de facto wife and/or her children were ‘the persons best able to deal with the Deceased’s remains consistent with his background..’[10].

Some of these disputes could have been avoided by simple expedients like making a will which included a short statement expressing a person’s wishes about disposal of their remains upon death. Unfortunately, the circumstances of the cases – the death of a young indigenous person – often explain the reason that this simple expedient had not occurred.

[1] The court does so pursuant to its inherent jurisdiction: Milson v Milson [2020] NSWSC 919, [20].

[2] See also In the Estate of Jones (Deceased); Dodd v Jones (1999) 205 LSJS 105; [1999] SASC 458; Johnson v George [2018] QSC 140; Dragarski v Dunn [2019] NSWSC 300; White v Williams (2019) 99 NSWLR 539;

[3] Probate and Administration Act 1898 (NSW), s63.

[4] Succession Act 2006 (NSW), Pt. 4.2, Div. 1 & 3.

[5] Ibid, s127.

[6] Ibid s128.

[7] Reece v Little [2009] WASC 30, [85], [86], [97]; State of South Australia v Smith [2014] SASC 64, [72].

[8] In Noa Nayacakalou v Raeleen Vincent [2020] NSWSC 24, [21(d)], a Galari Wiradjuri woman and expert gave evidence that, in respect of an Aboriginal person being “buried” on country, “buried” could be used to mean to bury a body or to bury ashes. Professor Greene also said that traditionally, an Aboriginal person is buried but if the person dies off country, they may be cremated and their ashes returned to country; the decision was said to lie with the head person in the family (see [21(e)]).

[9] [2020] NSWSC 919, [86].

[10] White v Williams (2019) 99 NSWLR 539; [2019] NSWSC 437, [114].

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