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Generally, when an estate is disputed the dispute is financial in nature. However, in less common circumstances disputes arise regarding how the body of the person is to be dealt with. As this is such a sensitive matter, with many possible differing opinions, we aim to shed some light on possible disagreements with this article.

Who owns a person’s body when they die?

Under Australian law, a corpse is incapable of being considered personal property. Rather the executor to the deceased’s Will is granted a right of possession for the limited purpose of burial. Therefore, technically no one “owns” a person’s body, rather the executor of the deceased’s Will has some discretion to determine how the body is dealt with. If the deceased has stipulated in their Will that they wish to be cremated, the executor is obligated by the Cremation Act 1929 (WA) to use all reasonable endeavours to have the direction or desire contained or expressed in such will, codicil, memorandum, or writing carried into effect”. This is the limit of the obligation on the executor regarding the corpse, any further instructions regarding the scattering of ashes or who may be present at the cremation or service are not binding on the executor.

If the deceased has stated in their Will that they wish to be buried or has not left instructions regarding the disposal of their body, the executor of the Will has discretion as to the method used. This is why it is paramount in selecting the executor and substitute executor of your Will, that you select not only someone competent to distribute your estate, but also someone you trust to respect your wishes.

What if I don’t agree with how my spouse’s executor intends to do with their body?

If a person dies without leaving instructions regarding their funeral or have elected to be buried and have appointed someone other than their spouse as their executor, section 13(1) of the Cremation Act 1929 (WA) may apply. This provision states that:

“No person shall cremate … the body of any deceased person if he knows that a person who was married to, or in a de facto relationship with, the deceased immediately before the death of the deceased, or any person who is next of kin of the deceased has objected in writing to the body being cremated…”

If you have an objection to your spouse’s body being cremated, we recommend that you make their executor aware of this in writing as soon as possible.

Disagreements as to where a person’s ashes are scattered

Unlike the body prior to cremation, ashes are capable of being owned. The person entitled to ownership has been accepted in Western Australia to be the person who obtained the permit for the cremation, generally being the executor as this is the person who has been entrusted to carry out the deceased’s wishes.

Due to the nature of the role of the executor and their discretion regarding the ashes, other interested parties cannot do much other than making their opinion known to the executor. To date, there is no record of the Supreme Court of Western Australia granting an injunction to prevent an executor from disposing of ashes in any particular way. The Supreme Court has expressly stated that they will support an executor’s discretion, particularly where the executor intends to act in accordance with the wishes of the deceased.

Apportioning ashes between multiple people

There is no obligation to keep a deceased’s ashes in one place. A good way to avoid conflict between loved ones is to agree to an apportionment of ashes. An executor, having a right to possession of the ashes can agree to separating a portion of the ashes into other urns for loved ones to do with as they please. It is important regardless of how the ashes are to be disposed of or if they are to be kept, that the person who is making the arrangements inform the Registrar of Births, Deaths and Marriages in the approved form of the arrangements within 7 days of the disposal.

Conculusion

The handling of a loved one’s remains is an often-overlooked source of potential conflict. As Australian law on the subject is largely supportive of the executor’s decision making, it is of paramount importance in preparing your Will that you select institute and substitute executors who are not only competent to distribute your estate but who you trust to respect your wishes.

If you are currently involved in or fear you may become a party to a dispute of this nature, either as an executor or other interested party, contact Lynn and Browns experienced deceased estates team for assistance.

About the Authors: This article has been co-authored by Sam Richardson and Steven Brown. Sam undertook his studies at Murdoch University fresh out of high school in 2020 at 17 years old, keen to pursue and interesting and challenging career. Since November of 2022, he has been with Lynn and Brown as a clerk but following the conclusion of his studies, he will be staying with our Wills and Estates team as a Law Graduate. Steven is a Perth lawyer and director, and has over 20 years’ experience in legal practice and practices in commercial law, dispute resolution and estate planning.

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