Australia: The battle for the ashes: Who will possess them when you die

Last Updated: 27 December 2013
Article by Mark Fatharly

While Australia was preparing to achieve their resounding defeat of the English cricket team to win the Ashes Series, another battle for the ashes was being played out in the Supreme Court of Western Australia.

In the decision of Milenkovic v McConnell [2013] WASC 421, delivered 22 November 2013, Justice McKechnie was required to determine what should happen to the ashes of a 30 year old man, Brent, who died suddenly and unexpectedly leaving a mother, a sister, a brother, a partner and a small child. Justice McKechnie stated at the outset that he suspected "it is also a case about hurt feelings, grief and bitterness but the law has no remedies for those". Often the such feelings are at the heart of estate disputes.

Brent's partner and child lived in Perth but his mother and sister lived in South Australia, and while the partner had arranged and paid for the funeral service and cremation, some months passed before she was emotionally ready to deal with the collection and disposal of Brent's ashes. Appointments to collect them were missed.

In the meantime, Brent's mother formed the view that the relationship between Brent and his partner Emma had ended prior to his death following a quarrel. She feared that Emma would not be concerned with providing a suitable resting place for Brent, so she instructed solicitors to obtain an injunction to require the ashes released to her in the absence of agreement. A temporary injunction was granted while negotiations occurred.

While some of those issues may have been avoided if there had been a grant of probate or letters of administration, no such application had yet been made.

As Justice McKechnie stated, "Sometimes it is necessary to strip out all the natural human emotions of grief, loss, bereavement, anger and pain, to focus only on the precise legal relationship between the parties."

In considering the Cremation Act and the decision of Justice Young J in Smith v Tamworth City Council (1997) 41 NSWLR 680, the simple answer was that the person entitled to receive the ashes is the person who obtained the permit for the cremation, or in other words, arranged for the funeral. Often that will have been arranged by the spouse or the person named as executor in the will.

Where there is no administrator of the estate, the Cremation Regulations 1954 (WA) ranks in priority the nearest surviving relative entitled to receive the ashes as being the spouse or de facto partner living with the deceased immediately prior to the death, then the spouse, then the son or daughter if over 18, then the parent, followed by a brother or sister over 18.

The legal authorities considered suggested that there is no more than an expectation that the recipient of the ashes should consult other interested family as to what should become of the ashes after they are received. There is however no legal obligation to do so and there are no legally enforceable rights of the family members lesser ranked by the Cremation Regulations to insist on that.

The injunctions had prevented the de facto partner Emma from carrying out her plan to inter Brent's ashes among the frangipanis and honour his memory with a plaque, which is presumably his final resting place as a result of discharge of the injunction.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Mark Fatharly
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