By Darryl Browne -
Key decisions
- Abraham v Magistrate Stone, Deputy State Coroner [2017] NSWSC 1684
- Smith v Tamworth City Council (1997) 41 NSWLR 680; [1997] NSWSC 197
- Re JSB (A Child) [2010] NZLR 236
- Re JS (Disposal of body) [2016] EWHC 2859 (Fam)
- Re Estate Condon; Battenberg v Phillips [2017] NSWSC 1813
- Cantor Management Services Pty Ltd v Booth [2017] SASCFC 122,
- D17-18\080 [2017] SCTA 169
- McFadyen v Bluett [2017] TASSC 72
- Ash v Ash [2016] VSC 577
- Ash v Ash (No 2) [2017] VSC 569
- Jemal David Zagami (in his capacity as administrator of the deceased’s estate) v James [2017] WASC 292
Contests concerning a deceased’s remains
In Abraham v Magistrate Stone, Deputy State Coroner [2017] NSWSC 1684, the deceased’s mother sought orders that her son’s body be delivered to her for the purpose of making appropriate burial arrangements in New Zealand according to Maori culture (as the deceased’s parents were Maori). After considering the principles identified in Smith v Tamworth City Council (1997) 41 NSWLR 680; [1997] NSWSC 197, the court made orders which provided for a Maori funeral ceremony and cremation in Sydney. The court noted that this outcome allowed the close relatives to attend the burial ceremony; it was the result of consultation amongst the stakeholders; it was the preferable course for the majority of close relatives; it obviated unreasonable delay and avoided further disputation that was likely to occur in New Zealand (at [56]).
Two recent decisions have considered the possibility of prospective court orders about a person’s remains to reflect the person’s wishes after death. In Re JSB (A Child) [2010] NZLR 236 the court held that it had jurisdiction before a person’s death to decide appropriate funeral arrangements after death. (However it declined to exercise the jurisdiction.) In Re JS (Disposal of body) [2016] EWHC 2859 (Fam) a dying teenager, JS, wanted cryonic preservation. Her estranged father opposed that action. On JS’s application, the Court granted an in personam injunction preventing the father from applying for a grant of administration in respect of JS’s estate, interfering with the arrangements made by the mother for disposal of JS’s body and appointing the mother as sole administrator upon JS’s death (at [41]).
