I have previously written about the tension that can occur when there are disagreements over whether, and where, a deceased person should be buried. In a new case, a dispute arose not only over whether the deceased should be buried or cremated, but also over where his remains should be kept.

Background

The background of the case is as follows:

1. Mr L died on 24 July 2014;
2. He married his wife, Mrs L in 1960 and had three children with her;
3. Mrs L died in 2002 and was buried at Gungahlin Cemetery in Canberra;
4. Mr L selected a double plot at Gungahlin Cemetery so that he could be buried next to Mrs L when he died;
5. Mr L would visit Mrs L’s grave every Friday for many years, and had told his children that he wished to be buried beside Mrs L;
6. Mr L’s capacity to manage his own finances and affairs began to deteriorate in 2006 as he began to give large sums of cash to new acquaintances, in particular to female prostitutes;
7. Mr L also gave away all of his savings, his inheritance from his wife’s estate, his car, the proceeds of his life insurance policy and many of his possessions;
8. Mr L proposed to several of the prostitutes he had encountered, and even proposed to his own niece;
9. In 2010, Mr L’s three children applied to the ACT Civil and Administrative Tribunal for the appointment of a manager to take care of Mr L’s property and finances;
10. Ms W, a prostitute who Mr L had utilised, was mentioned in the children’s application to the Tribunal as a predator who took advantage of Mr L’s financial vulnerability;
11. Ms W and Mr L married on 21 September 2011;
12. Ms W and Mr L had made plans to sell Mr L’s home and move to Brisbane;
13. The Public Trustee of ACT was appointed manager of Mr L’s property in 2011;
14. The Public Trustee of Queensland was appointed Mr L’s financial administrator in 2012, and the Queensland Adult Guardian was appointed his guardian in 2013;
15. Mr L made Wills in 2010 or 2011 and 2013. There is doubt as to whether his Will was made in 2010 or 2011 as both years are mentioned in it as the date of the Will;
16. None of Mr L’s Wills made any directions about the disposal of his body;
17. Ms W represented herself and provided to the Court two handwritten notes which she submitted were written by Mr L, and which expressed his desire to be cremated. Neither of the notes were signed; and
18. Ms W sought to have Mr L cremated in Queensland, while his children sought to have him buried in Canberra in the plot with his late wife.

What did the Judge consider?

The Judge considered the following:

1. The Executor of a Will has the duty to dispose of a deceased person’s body, and the right to possession of the body for the purpose of its disposal;
2. Section 7 of the Cremations Act 2003 states that if a deceased person has left signed instructions to be cremated, those instructions must be followed;
3. The handwritten notes provided by Ms W were unusual for a man of Mr L’s intellect and education as they were misspelt, illegible and incoherent;
4. Mr L and his family had a close connection with Canberra; and
5. Although none of Mr L’s children currently live in Canberra, they have all said they would visit Mr L’s grave if he was buried there.

What did the Judge decide?

The Judge found that the handwritten documents from Ms W were not persuasive to show that Mr L had made a free and rational direction that he would like to be cremated. As there was no question as to Mr L’s capacity at the time he purchased the burial plot at the cemetery for him to be buried with his wife, the Judge ordered that Mr L’s body should be released to his son for his funeral and subsequent burial at the cemetery in Canberra.

There is a fight over whether my loved one should be buried or cremated. What should I do?

If there is any dispute about the disposal of your loved one’s remains, it is important that you contact an experienced estate litigation lawyer. Please contact me should you require assistance or advice.