16 Council CONNECT May 2018 Private Clients Apart from appointing an executor, a person may not dictate what will happen to his or her body. When families disagree over a loved one’s burial Unfortunately, there will sometimes be disputes between family members regarding the burial of a loved one. Different members will have strongly held views about the type of memorial service and proper disposal of the body. The deceased may never have expressed their wishes and the opposing views of the family members may be equally valid. Background In Darcy v Duckett (2016), the Supreme Court of NSW considered who had the right to bury Mr Darcy’s body. Mr Darcy died intestate, leaving four children from one relationship, and another four with his de facto partner, Ms Duckett, with whom he was still in a relationship at the time of his death. Mr Darcy was born in Gulargambone in north-west New South Wales and was part of the Aboriginal Weilwan tribe. However, he had lived on and off with Ms Duckett since 2000 at Bowraville on the New South Wales north coast. Ms Duckett and their four children were of the Gumbaynggirr tribe, and it was argued that Mr Darcy had been “adopted” as a member of this tribe. Mr Darcy’s sister, Ms Darcy, argued that his body should be buried with his tribe on Weilwan country and Ms Duckett argued that the body should be buried in Bowraville. The Court had to consider a mix of secular and traditional law. Legal position The common law principles regarding the right to dispose of a body have previously been summarised by the Court: 1.  A person named as an executor in the deceased’s will has the right to arrange for the burial of the deceased’s body. 2.  Apart from appointing an executor, a person may not dictate what will happen to his or her body. 3.  The person responsible for the burial of the body is expected to consult with other stakeholders, but is not legally bound to do so. 4.  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. 5.  The right of the surviving spouse or de facto spouse will be preferred to the right of the deceased’s children. 6.  Where more than one person has an equal right to disposal, the practicalities of burial without unreasonable delay will prevail. Notwithstanding these principles, the Court stated that it needed to have a flexible approach, especially when “the undisputed evidence before me is that, in particular, the place of burial is a matter of cultural, spiritual and religious importance to Aboriginal Australians.” Part 4.4 of the Succession Act 2006 (NSW) permits “a person claiming to be entitled to share in an intestate estate under the laws, customs, traditions and practices of the Indigenous community or group to which an Indigenous intestate belonged” to “apply to the Court for an order for distribution of the intestate estate under this Part”. Although the issue here was not entitlement to the intestate’s estate, there is an implied willingness by the Legislature that the Court should consider the different family arrangements that can arise among Aboriginal people. Conflicting traditional positions Ms Darcy put forward evidence that it was: “‘story and tradition’ that she has received from the elders of her people that her ancestors must be buried on Weilwan country. The Weilwan people believe that if a Weilwan person is not buried on Weilwan country, his