There is no property in a dead body; this idea was stemmed from a case in the late 1800s and has been adapted within common law over time. Although a dead body is not classified as property, there are certain people who have authority for making decisions around a dead body and its disposal.
Usually, the executor appointed under the deceased’s will has this authority. Occasionally, directions are given by the deceased in their will, or an accompanying letter which gives guidance and might be said to be morally binding on the executor. If there is no will, however, there can be difficulties as to how the deceased’s body is disposed. In Smith v Tamworth City Council & Ors [1997] NSWSC 97 Young J laid down certain established principles as to ranking of people with the right to make these decisions:
- The person with the best claim to administration of the deceased’s estate will have the same privileges as an executor;
- A surviving spouse or de-facto partner will be preferred to the rights of children; and
- Where there are two people with equal ranking, the practicalities, of ensuring burial takes place without delay, will decide the issue.
If there is a dispute, the decision is within the discretion of the Court. It is hardly surprising that the decision will be difficult for the Court when there is a dispute between two people with equal ranking such as in the case of Brown v Weidig [2023] NSWSC 281.
The deceased took her own life suddenly at 23 years of age. She did not leave a will and had no estate assets. The parents of the deceased could not agree as to how the body will be disposed. There was no spouse or children and as the relationship with both parents had been rather dysfunctional, they both fell under a similar ranking in respect to their claims of disposal of the body.
The father of the deceased, the plaintiff, wanted the deceased to be buried in Taree, on or near ancestral Aboriginal land. The mother of the deceased wanted the deceased to be cremated and interred in Sydney so that the ashes were in close proximity to her and/or to be taken to a meaningful place.
In arriving at his decision, Lindsay J went through the inherent jurisdiction of the Court to make decisions about what happens to a body after death and whether there ought to be ‘no property in a dead body’. He expressed his opinion: ‘in the determination of a dispute about disposal of a body, there is a strong public interest element that may prevail over private claims of any type’.
Lindsay J concluded that since the parties are not in consensus, the best option was to grant the defendant (mother of the deceased) carriage of disposal of the body of the deceased by means of cremation, ensuring that if the plaintiff elects to receive some of the deceased’s ashes, the funeral director will be ordered to distribute ashes equally between the parties.
The case emphasises the importance, no matter your age or your personal circumstances, of having a valid will appointing an executor and where possible either in the will or an associated document giving direction as to you wishes in regard to your funeral and disposal of your body.
Although a traditional will is not the usual vehicle to express your wishes, we often recommend the drafting and signing of a letter of wishes in which a will maker can express many things which are not strictly legal matters which are required under a formal will. Unlike a will, which is legally binding as to the disposal of estate assets, a letter of wishes may be said to be morally binding on the executor appointed under the will and give guidance as to your wishes in relation to several matters including your funeral and the disposal of your remains.
