A difficult question – who gets the ashes – the second wife or the adult child?
It is an unfortunate reality that sometimes there will be conflict within a family and in some cases the Court has no choice but to make a determination to settle the dispute between the parties.
In a recent case in the Supreme Court of Victoria the Court had the difficult decision to chose between a son and a second wife who both wanted to depose of the ashes of the deceased.
- The deceased died of covid in 2021.
- The deceased was married to Ms Qin. At the same time he had a long standing affair with the live in nanny who looked after his son. The nanny had the deceased’s daughter during this time.
- The nanny gave evidence that from mid-2014 she lived with the deceased in a domestic relationship even though the deceased was married to Ms Qin and continued to have contact with her and his son. The son denies this and says he lived with the deceased and his grandparents during this time.
- Ms Qin and the deceased divorced in September 2020 and the nanny (now referred to as the second wife) and the deceased married soon after.
- The son organised the funeral and prayed over the deceased before and after his death (despite the second wife wanting to be involved). The son currently held the ashes.
- There was a dispute as to whether a property transfer agreement signed in 2017 which stated that the son should decide how to deal with the ashes was genuine.
- The starting point of principle as being that the executor of a deceased has the right to the custody and possession of the body until it is properly buried and that, with that right of possession, the executor also has the duty to dispose of the body.
- A direction by a deceased in a will that his body be disposed of in a particular way does not oblige an executor to act in accordance with such a direction.
- Often the Court will seek to identify ‘a person with the best claim in law to the responsibility of making burial arrangements’.
The Court’s Decision
- In this case there was an issue as to whether the will and the property transfer agreement were valid.
- It would be inappropriate to refer to the directions in the will and property transfer agreement when their authenticity was in doubt.
- A more appropriate basis is to give the right to dispose of the ashes to the person who is likely to have been closest to the deceased late in his life and who is therefore more likely to have been invested with his trust and confidence.
- The Court held that the second wife was the appropriate person to dispose of the ashes – there was no dispute that they were married and cohabitated for at least 12 months before his death (and potentially longer) and therefore as his partner was most likely to have been invested with the deceased trust and confidence.
Disputes regarding deceased estates are highly emotionally charged and require expert legal advice to try and resolve matters before they get to trial and unnecessary legal costs incurred.
If you require further information, please contact Catherine Ballantyne, Partner, at Catherine.Ballantyne@madgwicks.com.au.