By Darryl Browne -
Key decisions
- McCredie v Batson [2020] NSWSC 1913
- Re Condo; Marinucci v Condo [2020] VSC 613
- Accoom v Pickering [2020] QSC 388
- Smith v Smith [2021] WASC 15
- Pauperis v Pauperis [2020] NSWSC 1470
- Nendy v Armstrong [2020] QSC 380
- Turner v O’Bryan-Turner [2021] NSWSC 5
- Case 684126 (FSS Trustee Corporation)
Remains
Making arrangements for the disposal of the deceased can cause grief to the legal personal representative (‘LPR’).
Dispute between executors
Betty Batson died on 2 December 2020. By 23 December 2020 her executors, her two daughters, had not agreed on the ceremonial events which should accompany her cremation. The Court noted that executors are required to act jointly and, if they didn’t, new executors may be appointed (McCredie v Batson [2020] NSWSC 1913 (Slattery J) at [13], [15]). Time did not allow that course in this matter so the Court gave detailed instructions for the service. This included determining the funeral director, the level of service provided, persons who may attend and speak at the service, and the absence of choral singing.
Indemnity costs orders against the incalcitrant executor
The executors of Guiseppina Condo’s estate, being two of her five children, could not agree on her funeral and burial arrangements. The consequence was that the deceased was uninterred for more than two months. A daughter did not consult her co-executor brother before arranging a funeral director to collect the deceased’s body. The deceased was a devout Catholic of Italian heritage and wished for a traditional Italian service. A joint service was proposed by the daughter’s solicitor but she then commenced court proceedings.
Thereafter there was an agreed outcome similar to that earlier proposed by the son. The Court considered that ‘[b]y refusing the reasonable joint compromise and commencing the proceeding, [the daughter] engaged in an adversarial process with the defendant, which was unnecessary. Had the plaintiff been less stubborn, the proceeding could easily have been avoided. The plaintiff should thus bear the defendant’s costs in addition to her own costs, without recourse to the estate’ (Re Condo; Marinucci v Condo [2020] VSC 613 (McMillan J) at [23]). Moreover there was an indemnity costs order because the daughter’s ‘refusal to consult with her co-executor and at least two of her siblings on the funeral and burial arrangements and her refusal to accept what were fair compromises was unreasonable’ (at [25]).
