It is not uncommon for people to think that a deceased person’s next of kin will automatically have the right to bury the deceased after their death. The truth, however, is that under NSW law the deceased’s legal personal representative (also known as the executor) possesses the right to bury the body. If it becomes necessary, the executor can even sue in Court to recover the body for burial purposes.

Important role of an executor

A legal personal representative or executor is nominated by a person in their last valid will. In many cases more than one executor will be named in a will which means those persons need to work together to make the necessary burial and funeral arrangements. If a person dies without a valid will (known as intestacy) and does not have a named executor to represent their estate, the question of who has the right to bury the body arises.

It is an emotional and difficult time after a person has died. It is therefore understandable that disputes develop regarding burial and funeral arrangements particularly where a deceased has not appointed people to make the necessary decisions. More often than not any arguments are able to be resolved without an independent arbiter becoming involved. When disputes are unable to be resolved, the assistance of the Court may be required to provide a resolution to the dispute.

His Honour, Justice Campbell heard the matter of Darcy v Duckett [2016] NSWSC 1756 on 6 December 2016. The Court was asked to rule on the question of who had the right to bury the deceased; his sister or his de facto wife.

The deceased died on 1 May 2016 in circumstances that may have given rise to the need for a Coronial Inquest. The NSW State Coroner took possession of the deceased’s remains until the need for an inquest was eventually dispensed with. The dispute arose after the de facto wife of the deceased was declared ‘senior next of kin’ by the Coroner and the deceased’s remains were ready to be released for the purposes of burial.

The sister applied to the Court for orders that she was to have carriage of the burial and funeral arrangements. The sister also sought a declaration that the Coroner should release the deceased’s remains to her for that purpose.

Although the Court does not have strict rules regarding how it should determine these kinds of disputes, the following principles were considered:

  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.
  2. Apart from appointing an executor who will have the right stated in proposition 1, and apart from any applicable statute dealing with the disposal of parts of a body, a person has no right to dictate what will happen to his or her body.
  3. A person with the privilege of choosing how to bury a body is expected to consult with other stakeholders, but is not legally bound 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.
  6. Where two or more persons have an equally ranking privilege, the practicalities of burial without unreasonable delay will decide the issue.

The Court also considered what has been said in other decisions regarding burial disputes, including:

The proper approach, ultimately, requires a balancing of common law principles and practical considerations, as well as attention to any cultural, spiritual and religious factors that are of importance. Further, it is the unique factual context of the dispute itself which will determine the weight which particular factors should be accorded.

Of significance was that the deceased, his sister and de facto wife were all of Aboriginal heritage. Undisputed evidence was put to the Court that the place of burial is of cultural, spiritual and religious importance to Aboriginal peoples.

Other evidence was put to the Court regarding the deceased’s cultural heritage including things he had said about where he would want to be buried. The sister contended that the deceased should be buried in Gulargambone or Weilwan country being the traditional lands that he and his family came from. The de facto wife contended that the deceased had said he wanted to be buried at Bowraville or on Gumbaynggirr country as he had lived there for some time and he had had children who identified as Gumbaynggirr.

The Court accepted that the de facto wife was in a relationship with the deceased which granted to her the highest right to administration of the deceased estate. Under common law rules, a grant of administration would also give the de facto wife the right to bury the deceased.

The judge summarised the difficult decision he was faced with as follows:

If I may put it this way, I fully accept that the general rule, the strong preference, is for an Aboriginal person to be buried on country. I accept that part of the justification for this is that the soul will not be permitted by the souls of the people of that country to rest if a person is buried on other country.

It makes sense that there may be exceptions to this general rule in a case like this where a Weilwan man has chosen to make his life and home with a Gumbaynggirr woman on Gumbaynggirr country and he has been accepted as part of that community by the Gumbaynggirr people. I accept the evidence that this was [the deceased’s] situation during his life, after his permanent move to Bowraville.

The judge also commented that he accepted the sincerity of the sister’s claim and her belief her brother should be buried at Gulargambone before quoting Doyle CJ:

Sadly, the problem before me is really insoluble in one sense. It is impossible in any realistic sense to weigh the competing claims and arrive at what one would truly call a legal judgment. I understand and respect the wishes and beliefs of the plaintiff and of the defendant. There is no solution or compromise available to me that will satisfy each side. I can only make a decision and indicate my regret that it will cause pain to the unsuccessful party.

The de facto wife was allowed to receive the body of the deceased and to make the necessary burial arrangements. The Court noted, however, that the de facto should advise the deceased’s family of the funeral arrangements and permit them to attend the funeral if they wished to do so. The Court also indicated it would be desirable if any Weilwan funeral practises could be taken into account, and if possible, adopted at the burial.

The unfortunate events that led to this matter being before the Court can be avoided by making a valid will that nominates an executor. It is also important to discuss funeral and burial wishes with family and loved ones to ensure your wishes are able to be respected after your death.

For more information about Wills & Estates Law contact Turner Freeman today on 13 43 63 and speak to one of our specialist lawyers.