Moving away from contested wills and family provision cases, this one is about a dispute as to how to dispose of someone’s remains.

These are particularly sad cases, as it means the intense grief period following death is compounded or exacerbated by complex and urgent legal proceedings, delaying the funeral service, in this case for months after the death of the deceased.

Who has the right to determine body disposal?

There is no property in a body. It is the executor’s role to make decisions regarding disposal of remains. If you do not have a will, then it is up to your administrator (and there may be more than one administrator) to make the decision. However in some cases, who your administrator is may not be clear cut (or you have more than one), and sometimes they have different cultural or religious beliefs that are incompatible with the other’s beliefs.

It is another reason why you should consider having a will no matter how few assets you consider you have.

This case was made sadder in some respects, as the deceased had taken his own life.

Why was there a battle between Mum and Wife?

The deceased was married, however at the time of his death he was separated from his wife. There was evidence that he was in fact seeing someone else. It was not the first time the couple had separated.

The deceased was suffering depression and had tried to seek help. He had even sent a photo pretending to hang himself to his wife, despite their separation. The deceased ultimately took his own life in April 2020.

The deceased was of Aboriginal heritage and identified as an Aboriginal man. His mother wanted him to be buried in his town of birth. His wife wanted him cremated and ashes kept and turned into a keepsake, such as jewellery.

Mum tried to argue that cremation was unacceptable in Aboriginal culture. But no expert evidence was led. Mum was also trying to argue that she was his next of kin due to the separation, and that she felt the couple would not have reconciled. The wife had taken an AVO against the deceased a short period prior to his death. Mum also led evidence from the girlfriend that they had been planning a life together.

The wife argued that despite their separation, the deceased still stayed over on some occasions and there was the possibility of reconciliation. He had not informed her of the girlfriend. She had been unaware of the deceased’s relationship with someone else until the proceedings. Two of their children were also witnesses in the proceedings, and all were in favour of cremation.

Relevant Factors determined by the Court

It came down to a matter of credibility and whilst both parties had doubts cast as to their respective evidence, the Court ultimately found the wife was more credible than Mum.

What appeared to be particularly persuasive for Sackar J was the fact that in the police interview with the deceased after the incident that led to the AVO, the deceased only expressed concern for the welfare of his wife and children. He did not indicate he had a girlfriend or that he had separated in a permanent way from his wife, which Sackar J felt was evident that the deceased did not consider the marriage at an end.

The wife and children also attested to a discussion had about making keepsake with ashes at the time the wife’s father passed away, and this was used as evidence that the deceased appeared supportive of cremation, despite the Aboriginal tradition of burial.

Milson v Milson [2020] NSWSC 919