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It is important to reiterate that there is no property in a deceased’s body but the executor of a deceased person’s Will is entitled to custody and possession of the body so they can arrange a funeral. But what happens if a person dies without a Will (known as dying “intestate”) and the deceased did not have a prepaid funeral plan outlining their wishes?

Unfortunately, this was the situation in a recent Western Australian Supreme Court case heard in June 2024, where a young person died the day after his eighteenth birthday and did not have a Will. The Deceased’s parents had separated about 10 years prior to his death and a dispute arose between the family of the Deceased’s father and mother regarding funeral arrangements.

Given the Deceased’s died intestate, the principles of law followed by the Court in determining who should have possession and control of the body has been the subject of many court decisions. Ordinarily the Court will look at who appears to be the person most likely to obtain a grant of letters of administration of the estate.

However, in the recent WA case, the Deceased’s parents would rank equally. Therefore, the court will also look to a number of factors including but not limited to having regard to the practical circumstances of a case, any religious or cultural matters, the deceased’s wishes and the need for the funeral to be held in a timely manner.

The outcome of these disputes will vary considerably and depend on the circumstances of each case. In the recent WA case, the Court held that the sister of the paternal grandfather of the Deceased have carriage of the funeral.

Conflict between grieving family members in relation to the funeral and body of a deceased family member is a situation most people want to avoid. Therefore, the main takeaway from the above discussion is to plan ahead and make sure the person you appoint as your executor in your Will is a person you trust and who knows what you want to happen when you die. You can provide directions in your will. Pursuant to the provisions of the Cremations Act if you have made a written declaration seeking cremation during your lifetime that must be followed. In a strange quirk of the law there is no corresponding section of legislation for burial. It is still a good idea to put in your will that you wish to be buried as it will guide your executor and inform a court if it is disputed.

If you have specific funeral wishes, then you might consider making a prepaid funeral plan that sets out your precise wishes and enables you to make your own arrangements in advance.

At Lynn and Brown Lawyers, our Wills and Estates Lawyers are well versed in assisting clients prepare estate planning documents that reflect their wishes. If you would like to discuss your estate planning documents or have any questions regarding planning for the future, please contact us.

About the Author: Hannah is a graduate of both the University of Western Australia and Notre Dame University, having completed a Bachelor of Arts (major in ‘Law and Society’’ and minors in History and Psychology) in 2016 and a Bachelor of Laws in 2018.

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