It is not uncommon for disputes to arise when deciding how to dispose of a person’s body after their death.
In New South Wales, burial or cremation are the only two legal ways a body can be disposed of. The deceased may set out their wishes in a Will with regards to their burial or cremation, however, whilst these wishes may offer guidance, they are not legally binding or enforceable (Smith v Tamworth City Council (1997) 41 NSWLR 680).
Human remains as property
The general principle is that human remains are not property (Doodeward v Spence (1908) 6 CLR 408). As such, there can be no ownership of a person’s body. However, there is an exception to this rule where a person’s body (or body part) can be considered ‘property’ where a person has dealt with the human remains by the lawful exercise of work and skill. For example, the exception would apply where a human body has been preserved or mummified for display at a museum.
The Courts in Australia have adopted a similar approach with respect to human ashes as the human remains have been transformed into a preservable state. Accordingly, ashes are capable of being property provided they are not scattered or lose their physical characteristics as ashes in any way (Doodeward v Spence (1908) 6 CLR 408).
Possession of a deceased’s ashes after cremation
Common law principles
The NSW Supreme Court, in the case of Darcy v Duckett, sets out the principles regarding the disposal of a human body as follows:
- A person named as an executor in the deceased’s Will has the right to arrange for the burial of the deceased’s body.
- Apart from appointing an executor, a person may not dictate what will happen to his or her body.
- The person responsible for the burial of the body is expected to consult with other stakeholders, but is not legally bound to do so.
- If no executor is named, the person with the highest right to apply for a grant of administration will have the same right regarding disposal of the body as a named executor.
- The right of the surviving spouse or de facto spouse will be preferred to the right of the deceased’s children.
- Where more than one person has an equal right to disposal, the practicalities of burial without unreasonable delay will prevail.
Where there is a Will
The executor of the deceased’s last Will has the right and responsibility to control the arrangements for the disposal of the deceased body. Under Clause 85 of the Public Health Regulation 2012 the person who applied for the cremation of the body is entitled to receive the cremated remains. However, in accordance with the Probate and Administration Act 1989 (NSW), if a dispute as to possession of the deceased’s remains arises, the named executor will have the first right to possession.
Where there is no Will
Where there is no executor, the Probate and Administration Act 1989 (NSW) and the Succession Act 2006 (NSW) set out the following order of priority of persons who are entitled to possession of the ashes:
- The deceased’s spouse;
- One of the next of kin, this can include the deceased’s children, parents or siblings;
- If there is no next of kin, then another person appointed by the Supreme Court.
Appropriate manner of disposal of ashes
The person who holds the right to possess the ashes also has the accompanying discretion to direct their disposal, subject to the qualification that they exercise their discretion lawfully and with the appropriate reverence and respect. This person is expected to consult with other stakeholders as to the appropriate manner of disposal, however, they are not legally bound to do so.
Where a dispute arises as to disposal or possession
Regardless of whether the deceased has left a Will, disputes commonly arise between family members and friends regarding the disposal or possession of a loved one’s remains. In these situations, the Court will determine the dispute in a ‘practical way paying due regard to the need to have a dead body disposed of without unreasonable delay, but with all proper respect and decency’ (Calma v Sesar (1992) 106 FLR 446).
The team at Antunes Lawyers has widely assisted and advised clients in all aspects of estate matters and disputes involving deceased estates. If you would like to prepare or update your Will, are an executor of an estate and require assistance, or have a query regarding an estate, contact our experienced Wills and Estates lawyers at enquiries@antunes.com.au, call (02) 9964 0499 for advice or fill out the form below and we will get back to you.