Australia has an extensive and detailed system of property rights. People can own real estate and all kinds of personal property. There are intellectual property rights. But, despite all this, it’s interesting to note that we do not own our own bodies, or the things removed from them.
When you make a Will your executor (whose job it is, amongst other things, to carry out the terms of your Will) is charged with taking possession of your body following death and arranging for it to be disposed of (burial or cremation, etc.). A deceased cannot bind their executor concerning disposal of their remains. They can express a wish as to what they would like to occur, but such a wish remains just that: the executor will have the final say on this issue. The reason for this is that a Will is only enforceable in relation to property matters.
Even so, a Will is a forum for the deceased to express their wishes. This can be very useful where, as occasionally occurs, family disagreements arise as to the disposal of the deceased’s remains.
Giuseppina Condo died on 16 May 2020. She was survived by her five adult children. Giuseppina appointed two of them, Maria, and John, as executors. A dispute developed between the executors concerning funeral arrangements for their mother. The net result of this was that the deceased remained uninterred for two months following her death.
After legal proceedings were commenced, an agreement was reached. However, the Court found that Maria had been unnecessarily stubborn and confrontational on the issue and ordered that she pay John’s legal costs personally (i.e., these legal expenses could not be paid for by Giuseppina’s estate).
The conclusion to be drawn from this unedifying story is that you should have a Will which addresses the question of the disposal of your remains. State clearly what you want (even if your executor is not bound to provide it!) so that your wishes are clear. If you have no strong views on the subject, at least make it clear that you are leaving these matters to be determined by your executors-with a ‘plan B’ if you have more than one executor and they find themselves unable to agree on the matter.
Our highly experienced Family Lawyers at Tonkin Legal Group are here to advise and provide help, so book an appointment with us today.
