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
In the decision of Milenkovic v
McConnell  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
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
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
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
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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