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Who has the right to deal with the deceased's body?

Milson v Milson [2020] NSWSC 919 - Sackar J


This case concerned an application by the deceased’s mother for a grant of letters of administration for the purpose of the burial of the remains of the deceased. The application was opposed by the deceased’s wife (the defendant) and the deceased’s son who both sought a similar order by way of cross claim. The deceased took his own life on 27 April 2020 leaving behind a wife, three children, a girlfriend and no Will. The plaintiff (the deceased’s mother) sought to have the deceased buried on country in Gilgandra according to tribal custom of the Wiradjuri tribe, of which the deceased was a member. The defendant and the deceased’s son sought to have the deceased cremated and for his ashes to remain in their possession.

The plaintiff (the deceased's mother) contended the deceased and the defendant were separated at the time of the deceased’s death and the deceased had entered into a new secret relationship with Ms Bojkowski, whom he intended on spending the rest of his life with. She claimed the deceased was a proud Aboriginal man and was proud of his culture. She claimed that cremation is not accepted in the deceased’s culture and that she wished for his remains to be brought ‘home’ to Gilgandra for the appropriate cultural ceremony and burial.

The defendant contended that although she had discovered the deceased was seeing two women and that their relationship had since become strained, she considered she had a close and loving relationship with the deceased. Although the defendant admitted the deceased did not live with her, she claimed he continued to come to the matrimonial home every day until March 22 when an argument between the deceased and the defendant escalated and the defendant took out an AVO against the deceased. The defendant also stated that the deceased told her on one occasion that he made a mistake leaving her and that he loved her. She insisted that their separation was still a trial.

The deceased’s son contented that he was close to his father and that he recalled the deceased saying he wished to be cremated and have his ashes put into jewellery. The deceased’s son stated that he wanted his father to be cremated and have the ashes remain in the Newcastle area. He claimed that at times his father was a proud Aboriginal man.

Decision:

Sackar J considered the authorities he reviewed in White v Williams (2019), namely that there is no property in human remains, however the executor of the deceased’s estate has the right to arrange the burial. This position is fulfilled by the administrator where the deceased died intestate. Pursuant to s 63 of the Probate and Administration Act 1898 (NSW), the spouse of the deceased and/or the next of kin are persons to whom the court may grant administration of a deceased’s estate. Priority is given to the surviving spouse of the deceased, then any surviving children of the deceased, and then the parent of the deceased.

His Honour considered that a spouse or de facto are obvious applicants for letters of administration and that the nature of these particular relationships with the deceased were highly relevant. Further, he stated that the court should give great weight to the views of the deceased and especially the views of the deceased’s children. Relevant religious, cultural and spiritual matters should also be given considerable weight.

His Honour considered the nature of the relationship between the deceased and the defendant at the time of the deceased’s death, namely that although they had agreed to a trial separation, they had not agreed on a divorce and there was no evidence that any such discussion took place. The evidence of the defendant and the children was in stark contrast to the evidence of Ms Bojkowski. Both parties claimed the deceased was often in their company and while his Honour undoubtedly considered there to be exaggeration on both sides, he preferred the evidence of the defendant and her two children. Further, Sackar J considered the video interview the defendant had with the police subsequent to the AVO. His Honour took the view that the deceased’s demeanour along with what he told the police did not support the view that the marriage was at an end.

In relation to the issue of the deceased’s Aboriginal ties, his Honour noted that while many Aboriginal people considered burial on country to be of great importance, there was no evidence to support the plaintiff’s assertion that cremation was contrary to Aboriginal custom. Importantly, his Honour noted that there was evidence the deceased wished to be cremated. His Honour rejected evidence from Ms Bojkowski that the deceased discussed with her his wishes to be buried. His Honour did not find Ms Bojkowski’s evidence to be reliable and considered the purported conversation to be highly implausible. Although his Honour did not doubt the deceased was in a secret relationship with Ms Bojkowski, he did not consider a secret relationship of approximately 8 weeks in duration to have progressed significantly past the infancy stage and thus favoured the contrary evidence given by the defendant and the deceased’s children.

His Honour concluded by stating that he was of the view that the defendant should have the privilege of dealing with her husband’s remains. Sackar J held that the deceased had put his family above his respect for his heritage for entirely sentimental reasons and that his wishes should be respected, as should the wishes of his wife and most importantly the wishes of his children. Although his Honour stated that the wishes of the plaintiff should be respected, he held that they should not govern the outcome of the case. His Honour made orders appointing the defendant as ‘administrator of the estate for the purpose of a special grant of administration, custody of the Deceased’s body and authorisation to arrange the funeral and cremation of the Deceased.’ His Honour also noted that if for any reason he had rejected the defendant’s claim, he would have no hesitation in granting the same relief to the deceased’s son.

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