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The validity of the application for letters of administration

9. ZD readily concedes in making her application for Letters of Administration – No Will she has not complied with all of the requirements of the Rules. She has not published a notice of her intention to make the application as required by r 3006 of the Court Procedures Rules 2006 (ACT). Her affidavit does not annex a death certificate. None can presently be issued because GD’s body has not been disposed of. A death registration statement is therefore not presently available, as required by the Births, Deaths and Marriages Act 1997 (ACT) before a death certificate will issue. ZD also seeks waiver of the requirement for an administration bond pursuant to r 3046 of the Rules.

10. The application otherwise complies with the requirements of r 3010 of the Rules. Given the issue in this matter is the management of GD’s body, not her financial affairs, and noting each of her parents is a party to the application proceedings, I consider this to be an appropriate matter in which to waive the requirement for notice of the application, and for provision of an administration bond pursuant to r 3006 and 3046 of the Rules.

The effect of the caveat

11. The caveat is lodged pursuant to r 3066 of the Rules which provides: 3066 Caveat—filing (1) A person claiming to have an interest in an estate may file a caveat in the court. Note See approved form 3.26 (Caveat) AF2026-25. (2) A caveat may be— (a) a caveat against a grant of representation for the estate; or (b) a caveat requiring proof in solemn form of any will of the deceased person; or (c) if a grant of probate is made on presumption of the death of the person under the Administration and Probate Act 1929, section 9B—a caveat against distribution of the estate. (3) A caveat mentioned in subrule (2) (a) or (b) may be filed at any time before a grant of representation is made for the estate. (4) A caveat mentioned in subrule (2) (c) may be filed at any time before the estate has been fully distributed. (5) The caveat must state fully the nature of the caveator’s interest and the grounds of the caveator’s objection. (6) If probate or letters of administration is sought in relation to a will (including a document claiming to contain the testamentary intentions of the deceased person), the grounds of objection may be stated as follows: (a) that there is a later will executed, or act of revocation or made, on a stated date; (b) that the will was not executed by the testator; (c) that the will was not executed in accordance with a stated provision of the Wills Act 1968; (d) that the document for which probate or administration is sought was not executed in accordance with the Wills Act 1968 and was not intended by the deceased person to be the deceased person’s will; (e) that the testator lacked testamentary capacity at the time of execution of the will; (f) that the testator executed the will under the undue influence of a named person. (7) If a grant of representation is sought for an intestate estate, the grounds of objection may be stated as follows: (a) that a will executed on a stated date exists; (b) that the applicant for the grant of representation does not have the capacity or stand in the relationship for which the applicant seeks administration; (c) that the caveator or someone else seeking administration has a better stated right; (d) that the proposed administrator is disqualified because of a stated reason. (8) Subrules (6) and (7) do not limit the grounds of objection that may be stated in a caveat. (9) The caveat must give an address for service of the caveator. Note Address for service is defined in the dictionary.

12. ND is clearly a person having an interest in the estate. The basis upon which he resists the grant of letters of administration to ZD is threefold: (a) He contends ZD is not fit to administer the estate because she understates its financial value (although he concedes it’s financial value is negligible). (b) As the application is fundamentally concerned with the capacity to deal with GD’s body, he says the application for letters of administration is an abuse of process. (c) He asserts an equal standing to seek a grant of representation (although he makes no formal application for a grant of administration in his favour).

13. The effect of the caveat is to prevent a grant of letters of administration during the period of operation of the caveat. The caveat may be set aside where the evidence relied upon by the caveator fails to raise doubt about whether the grant of representation should be made: r 3069(4)(b) of the Rules. Should there be a grant of letters of administration?

14. ZD applies for sole administration of GD’s estate. Even though parents have an equal right to be granted administration for an intestate person, it does not follow the Court should grant administration to both. She argues ND should not be granted letters of administration because: (a) His conduct demonstrates no interest in administering the estate in a timely manner. He has prevented ZD and any other person from disposing of GD’s body and has filed two applications with the Court, both dismissed, with a stated intention to continue to the High Court. (b) He does not seek letters of administration.

15. ZD contends she is the most appropriate person to be appointed as she is: (a) Taking steps to administer the estate and dispose of GD’s body. (b) Lived with GD when she died.

16. ND does not apply for a grant of administration over the estate. He says the dispute is fundamentally concerned with the capacity to deal with GD’s body and the estate has negligible financial value. The application for administration is made to bypass the issue about disposal. He accepts any grant of administration to ZD alone, to his exclusion, may mean she is in control of the body’s disposal.

17. ND also submits ZD is not fit to be an administrator because: (a) She caused GD significant stress by favouring her younger sister, together with other allegations of domestic instability. GD was always happier when with ND. (b) She has understated the estate’s value which demonstrates a lack of candour. (c) GD’s residence with ZD does not bear on who should be granted administration.

18. ZD is clearly an eligible person to whom a grant of administration of an intestate estate may be made as she is one of the next of kin of GD: s 12 of the Administration and Probate Act 1929 (ACT). Sub-section 12 (3) provides: … (3) The Supreme Court must not grant administration of an intestate estate to a person mentioned in subsection (1) (e) if there is anyone else to whom administration may be granted under this section who— (a) in the court’s opinion, can be trusted with administration of the estate; and (b) applies to be granted administration of the estate.

19. ND is also an eligible person but he does not apply for a grant. It is implicit in s 12, notwithstanding ZD’s standing as an eligible person to apply for a grant of administration as a next of kin, the Court should not ignore any evidence placed before it indicating she is otherwise not an appropriate person for appointment. Having said that, the criteria for determining whether an individual is appropriate for appointment as administrator is a discretionary exercise and is heavily fact dependent. In this case, no other person applies for a grant.

20. Where a caveat has been lodged, and the caveator has a demonstrated interest in the estate as in this case, the caveat may still be set aside where the caveator has failed to raise doubt about whether the grant of representation should be made. I do not accept the evidence relied upon by ND demonstrates ZD is either unfit or incapable of acting in the office of an administrator. To the extent she has failed to fully account for the value of the estate, her error is in very modest terms, and arises in circumstances where both of the parties agree the issue is really not about the financial value of the estate, but about the right to control what happens with GD’s body. ND makes submissions about GD’s relationship with her mother as a basis for finding ZD an unsuitable person to administer GD’s estate. Those submissions are made against the background of what appears to have been a contested family law dispute following the breakdown of the marriage. I note GD was living with her mother at the time of her passing and there is no indication GD was unhappy with that arrangement. There is otherwise no evidence before me suggesting ZD is incapable of performing the functions of an administrator.

21. ND submits the grant of letters of administration in circumstances where the estate is of negligible financial value, and the real issue is management of the deceased person’s body, is an abuse of process. His submission in that regard is misconceived. As Lindsay J observed in Brown v Weidig [2023] NSWSC 281; 22 ASTLR 386 at [33]: The probate jurisdiction attends principally to the identification, collection, management and distribution of a deceased person’s estate, but it also accommodates “the person” in recognising the role an executor or administrator may play in management of funeral arrangements and in the appointment of a testamentary guardian for children. It aids an orderly transition of the affairs of a person, commencing with a focus on the testamentary intentions of the deceased and shifting to the entitlements of beneficiaries.

22. His Honour continued at [55]: Courts have thus generally accepted that, prima facie, rules governing an exercise of probate jurisdiction in the administration of the estate of a deceased person (themselves often rules of practice rather than rules of law) provide practical guidance in recognising a “right”, “obligation” or “privilege” associated with identification of a person to have carriage of disposal of a body.

23. It is well recognised that one of the functions of a person entrusted with the administration of the estate of a deceased person is the management of tasks associated with the disposal of the deceased person’s body. Regardless of the financial status of the deceased person, the management of their “person” in the form of their remains is an entirely appropriate basis for the seeking of letters of administration. In most cases it is to be hoped no dispute arises about that aspect of the management of the estate. The existence of a dispute and the consequent resort of a person with an interest in the estate for the court’s assistance in resolving the dispute is not an abuse of process.

24. Where ZD is an eligible person and the evidence before me has failed to raise doubt about whether the grant of representation should be made, it is appropriate for the caveat to be set aside and for ZD to be granted letters of administration.

How is disposal of GD’s body to be managed?

25. ZD’s application for a grant of letters of administration was not inappropriate for the reasons articulated above, but it was unnecessary. It is well-established the Court has power, as part of its inherent jurisdiction to make orders regulating the disposal of a deceased person’s body without a grant of probate or administration: Brown v Weidig at [24].

26. ZD submits she should have the right to bury and dispose of GD’s body because ND is unwilling or unable to do so. She accepts parents have an equal rank in entitlement to bury their children, but that right should fall solely on her. The priority is now to dispose of GD’s body, and ZD is willing to undertake the task immediately. However, the delay caused by ND’s insistence for further examination of GD’s body has been unreasonable in circumstances where there are no ongoing investigations and the body’s current condition is unknown.

27. ND submits he has a superior right to dispose of GD’s body because GD’s welfare deteriorated significantly under ZD’s care. Appointing ZD ignores her role in creating an alleged volatile domestic environment.

28. ND also takes issue with ZD’s desire to dispose of GD’s body and to do so without a further examination. His concern is there are “unresolved forensic and physical anomalies” requiring further investigation. As he has an “absolutely equal rank” with ZD, he has a right to pursue the truth surrounding her death.

29. As the Court observed in Marschall v Elson [2023] SASCA 1 at [6], the decision as to disposal of a deceased person’s remains where there is a dispute about the disposal is: …one which could not truly be called a ‘legal judgment’ and that determining who may decide the manner and place of burial requires that the Court resolve a problem which is ‘really insoluble in one sense’ because no solution or compromise will satisfy those in dispute. (Internal citations omitted.)

30. After a review of the relevant authorities, the Court went on in Marschall to identify the following key propositions at [59]: 1. There is no property in a dead body, and it may not be owned by anyone. Nonetheless in certain circumstances the law may protect the lawful possession of a corpse or body part. 2. When a person dies possessed of sufficient property, the duty of burying the body falls on his or her personal representative. Where there is a will, that is the executor or executrix named in the will. There is no longer any obligation in a husband to meet the reasonable funeral expenses of his deceased wife 3. Where the deceased does not have the means to pay for burial, the occupier of the premises in which the person dies has the duty to cover the body and convey it for burial. That obligation extends to hospitals and medical facilities 4. Where there is no executor named, but the deceased leaves an estate, the person entitled to administration is usually the person who is responsible for the burial of the body and for the payment of the funeral expenses. That person may recoup those expenses out of the estate. 5. Where the deceased dies intestate, but there is no significant estate, or it is unlikely that an application will be made to take out letters of administration, the wishes of the person best placed to obtain an order for administration will not necessarily be accorded significant weight on account of that fact alone. 6. Rather, in all cases involving intestacy, the proper approach requires a flexible balancing of common law principles and practical considerations, as well as attention to any cultural, spiritual and religious matters that are of importance on the evidence. This extends to taking into account, at the least, the wishes of the deceased and the members of the family of the deceased. 7. It is not always necessary to resolve all disputes that may emerge on the evidence, and the Court must be mindful that the dignity of the deceased, and the conscience of the community, require that a declaration as to the mode and place of burial be made promptly, albeit with all proper respect and decency for the interests of those involved. (Internal citations omitted.)

31. As to the right of burial in New South Wales, Young J undertook a comprehensive review of the authorities in Smith v Tamworth City Council (1997) 41 NSWLR 680 before setting out a list of principles at 693-4. Relevantly for these purposes, his Honour identified the following: … 4. Where no executor is named, the person with the highest right to take out administration will have the same privilege as the executor in proposition. 5. The right of the surviving spouse or de facto spouse will be preferred to the right of children. 6. Where two or more persons have an equally ranking privilege, the practicalities of burial without unreasonable delay will decide the issue.

32. In Calma v Sesar (1992) 2 NTLR 37; 106 FLR 446, the Supreme Court of the Northern Territory was dealing with a not dissimilar dispute between parents each seeking to exercise the right to dictate the means of disposal of their child’s body. As in this case, there were deep divisions between the father and the mother. The Court was presented with material filed on behalf of the competing interests directed to the care and attention provided to the deceased person while they were alive and making critical remarks as to the level of care and attention provided by the other. Justice Martin observed at 452: The right to possession of a dead body runs with the duty to dispose of it. Each parent in this case had that duty, or at least accepted it, and attempted to carry it into effect, thus claiming that right. Their respective legal claims were subsumed by deep emotion emanating from, and affecting not only them, but other members of the deceased's extended family as well.

33. His Honour continued: A legal solution must be found; not one based on competing emotions and the wishes of the living, except in so far as they reflected a legal duty or right. That solution will not embrace the resolution of possibly competing spiritual or cultural values. The conscience of the community would regard fights over the disposal of human remains such as this as unseemly. It requires that the Court resolve the argument in a practical way paying due regard to the need to have a dead body disposed of without unreasonable delay, but with all proper respect and decency.

34. The comments set out above are apposite in this case. The dispute is not amenable to a compromise resolution and the wishes of each of the parents have equal standing. Their wishes are diametrically opposed. Ultimately, I am most significantly influenced by the need to achieve finality. A preference for the wishes of ND does not deliver finality. That is because of the impact of s 33(2) of the Transplantation and Anatomy Act 1978 (ACT), which provides: If it appears to the senior available next of kin of the deceased person, after making the inquiries (if any) that are reasonable in the circumstances, that— (a) the deceased person had, during his or her lifetime, expressed an objection to a post-mortem examination of his or her body and had not withdrawn that objection; or (b) another next of kin of the same or a higher order of the classes in the dictionary, definition of senior available next of kin, paragraph (a) or (b) has an objection to the post-mortem examination of the body of the deceased person; the senior available next of kin shall not, under subsection (1), authorise the post-mortem examination of the body of the deceased person.

35. ND wants GD’s body preserved to facilitate a further post-mortem examination. ZD objects to a further examination taking place. The coroner rejected ND’s request for a further examination and released GD’s body. The effect of s 33(2) is such that even where ND’s wish to preserve the body to permit further examination is acceded to in the form of these orders, there remains a complete barrier to achieving his wish for a further examination. That barrier is in the form of ZD’s lack of consent. As a consequence, an order giving preference to ND’s wish for the body to be preserved fails to achieve the goal of finality in the form of disposal of the body without unreasonable delay. For that reason, I consider it appropriate to make orders expressly permitting the disposal of GD’s body.

Orders

36. I make the following orders: (1) The requirements for publication of a notice of intention to apply for a grant of representation and for the provision of an administration bond are dispensed with. (2) The caveat lodged on 7 July 2026 is set aside. (3) The Registrar is directed to do all things and take all steps necessary to grant letters of administration for the deceased, GD, to ZD. (4) Upon receipt of the grant of representation, ZD is authorised to take carriage of the funeral and disposal of the body of GD. (5) Each party is to bear their own costs of and incidental to this application.

I certify that the preceding thirty-six [36] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Muller. Associate: Date: