March 2017

When families disagree over a loved one's burial

Unfortunately, there will sometimes be a dispute between family members regarding the burial of a loved one.  Different family members will have strongly held views about the type of memorial service and the proper disposal of the deceased’s 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 his date of death.

Mr Darcy was born in Gulargambone, in north-west New South Wales and was part of the Aboriginal Weilwan tribe.  However, Mr Darcy 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 needs 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”.  Whilst 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 amongst 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 country, his or her soul will not rest properly…” and “when our people are not buried on the country with their ancestors their spirit gets lost and would always be travelling and unable to rest.”

Ms Duckett's evidence was that:

during their time together living at Bowraville, Mr Darcy became involved in Gumbaynggirr community activities, including with the Gumbaynggirr elders.  The Gumbaynggirr language remains strong and Mr Darcy learned to speak some words.  He encouraged their children to become fluent in the Gumbaynggirr language and knowledgeable about their culture… Mr Darcy would introduce himself as having been born out west in Gulargambone, but that he was from Bowraville in Gumbaynggirr country.”

Decision

In finding that Ms Duckett had the superior claim for administration of Mr Darcy’s estate, the Court also found that Ms Duckett had the superior right to determine the burial of the body.  This was because the evidence showed that “a Weilwan man has chosen to make his life and home with a Gumbaynggirr woman on Gumbaynggirr country and he has been accepted as part of that community by the Gumbaynggirr people.”

In acknowledging the disappointment that Ms Darcy and her family would feel, the Court quoted an earlier decision regarding burial: “There is no solution or compromise available to me that will satisfy each side.  I can only make a decision and indicate my regret that it will cause pain to the unsuccessful party.”

Conclusion

The right to burial of a deceased person is determined by legal, ethical and practical considerations:

  • The person with the greatest entitlement to apply for a grant of representation in an estate will generally have the superior right to the disposal of the body.

  • The Court will endeavour to balance common law principles with practical and traditional considerations.

  • The person with the right of burial should consider the wishes of interested parties and inform them of the arrangements.

Author: Philip Davis