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[2007] VSC 118
Supreme Court of Victoria
2007-03-30
HARGRAVE J
Original judgment source is linked above.
ADMINISTRATION AND PROBATE - Family dispute as to method of disposal of body of deceased - Independent executor unwilling to decide - Jurisdiction of court to intervene - Principles discussed.
1 Sarina Keller died peacefully on Sunday 25 February 2007, aged 81 years. The aftermath of her death has been anything but peaceful. A bitter and spiteful dispute between her two children has led to the wholly undesirable situation - disrespectful of the deceased and offensive to ordinary standards of common decency - that Sarina's body has yet to be disposed of, by burial or cremation.
2 At the heart of the dispute is a history of conflict between the two children. The deceased's daughter, Shoshanah, is the plaintiff. The deceased's son, Philip, is the defendant. By originating motion and summons on originating motion, Shoshanah seeks orders and directions under rule 54.02.
3 The issue which I must decide is this: who has the right to possession of the body of the deceased for the purpose of ensuring decent disposal. The issue is important to the parties because Shoshanah wishes to have her late mother's body cremated, in accordance with what she asserts were her late mother's express wishes, whilst Philip wishes to bury his late mother's body, in accordance with Jewish tradition and religious law.
4 The summons came on for hearing in the Practice Court yesterday afternoon. The hearing was completed late in the afternoon. There is an obvious need for urgency and both parties wish an early decision.
5 The deceased left a will made in 1965, shortly after her divorce from the father of the parties to this proceeding. By her will, the deceased appointed State Trustees to be her sole executor and left her estate to her two children in equal shares.
6 The general rule is that if a person has named an executor in his or her will, and that person is ready, willing and able to arrange for the disposition of the deceased's body, the person named as executor has the right to do so. This right includes the right to choose how to dispose of the body, whether by burial or cremation. Where there is no named executor, or any intestacy, the person with the highest claim to be appointed administrator of the estate has the same right to choose how to dispose of the body. In each case the law expects, but does not require as a legal obligation, that the executor or person with the highest claim to be appointed administrator will consult with other stakeholders. These principles are well established and were summarised by Young J in Smith v Tamworth City Council.[1] The difficulty in this case is that, having regard to the bitter dispute between the parties, State Trustees is understandably not ready, willing or able to choose the method of decent disposal of the deceased's body.
7 Counsel for Shoshanah argued that the deceased's will has been revoked, or that there is at least a substantial prospect that the court will refuse to admit it to probate under s.9(2) of the Wills Act 1997 because the deceased has by some writing purported to revoke the will. I do not accept either of those arguments. There is no written revocation capable of satisfying s.12(e) of the Wills Act. There is no writing or dealing with the physical will within the meaning of s.12(g) of the Wills Act. There is no writing which satisfies the gateway to the exercise of discretion under s.9(2) of the Wills Act.
8 How then should I proceed to determine this controversy? There is some authority on the question of how the court should proceed where there is no will. Having regard to the attitude of State Trustees, these authorities provide guidance as to how I should proceed.
9 The authorities establish that the court ought not, in an application such as this, embark upon a lengthy adversarial hearing to resolve the various claims and counter claims. This would delay the decision for an unacceptable period whilst the body remained undisposed of. Accordingly, cross-examination will usually be inappropriate.
10 In Meier v Bell,[2] Ashley J said:
I consider it to be entirely understandable and appropriate that a court should approach a matter such as the present by seeking to identify a person with the best claim in law to the responsibility of making burial arrangements. Such identification might not always be straightforward, but it is likely to be very much easier than attempting to resolve what I have called "the merits". The matter before me illustrates the complex factual issues that could arise for determination if a decision was required to be made upon the merits - issues the subject of hot debate and much emotion.
11 In this regard, Ashley J expressed approval and adopted the statement of Martin J in Calma v Sesar[3] in respect of the claims of the protagonists in that case. Martin J stated:
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, questions relating to cultural values and customs interceded. To state that the court was asked to make a decision taking into account matters relating to burial in a homeland and the profession of the Roman Catholic faith demonstrates just some of the imponderables. Further, issues such as these could take a long time to resolve if they were to be properly tested by evidence in an adversary situation. 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 resolution 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 the court resolve the argument in a practical way having due regard to the need to have a dead body disposed of without unreasonable delay, but with all proper respect and decency.[4]
It follows from what I have said, and I should make it clear, that the manner of resolution of a problem such as the present must be consistent. The body of principle to which I have referred requires it. There cannot be departure from principle in order to accommodate particular factual disputation, whether it be founded on matters of religious, cultural or of some other description.[5]
This is not, however, the end of the matter. Although the cases make it clear that the decision as to the manner and place of disposition of a dead body is entrusted to the executors, they do admit qualifications. It is possible in certain circumstances for the court to intervene on the application of an interested party. The executors are expected to consult with those interested, and they may not exercise this power so as to exclude their friends and relatives from expressing their affection for the deceased in a reasonable and appropriate manner. Likewise, although the executors ought to have regard to the expressed wishes of the deceased and to the cultural and spiritual values of the deceased, they are not bound to give effect to them, for it is not competent for a person to dispose of his or her own body, by will or otherwise.[8]
14 Further, on behalf of Philip, reliance was placed upon the decision of Cummins J in Dow v Hoskins[9], in which his Honour also accepted the prima facie guidelines which I have referred to, but added, also by way of obiter dicta:
However, the true view, I consider, is that it is only a prima facie test. With every respect, I cannot agree with Ashley J that cultural matters ought be disregarded. In that respect I agree with Perry J. I consider that the administrator test is the proper prima facie test, but not to the necessary exclusion of the cultural or other factors, where such factors substantially arise on the evidence before the court.[10]
15 I accept that cultural and religious factors may be relevant in cases where the attitude of the deceased to such issues is not in substantial dispute. However, where there is such a dispute, as here, I prefer, on balance, the approach of Ashley J in Meier v Bell. It is consistent with the need to resolve issues such as this in a prompt fashion and in a fashion which does not descend into the unseemly airing of family disputes such as in this case. The difficulties and embarrassment which this causes for judges called upon to decide such disputes were stated, in language which I would adopt, by Byrne J in Leeburn:
It is a difficult case, too, as a matter of law, for it raises and touches upon issues upon which there is surprisingly little judicial guidance. Moreover, such authority as I have been referred to appears to be based upon practicalities as much as upon principle. This may be because the questions which come before the courts as to the right to direct the disposition of a dead body or parts of it must be determined quickly without the luxury of a full investigation of the facts and law. It may be, too, that it is because cases such as the present stand at the intersection of a number of competing principles. These may be competing prescriptions and proscriptions of a cultural, social or religious nature, personal taboos, wider concerns as to public health and decency, the attitudes of the grieving family and friends, and the wishes of the deceased. Moreover, these competing pressures may be difficult to resolve, especially where they are based on feelings which are strongly held at a time of great emotional stress and which are difficult to justify, or even explain, in any rational way. This makes decision or compromise difficult. It is an area of law where one can read in the reported decisions an anguish in the judges seeking to accommodate the concerns of those interested; and their embarrassment at having to deal, often in some haste, with bitter conflicts within families over the remains of a recently deceased relative or friend, which conflicts, although arising out of genuinely held feelings, are perceived as being unseemly.[11]
16 In this case, the issue is complicated by my view that probate is likely to be granted to State Trustees. Accordingly, any consideration as to who has the highest claim to be administrator is limited to the single issue of who should have the privilege of deciding how the body of the deceased will be disposed of. Other factors appear to have no relevance. For example, as to who is best qualified to act as administrator and deal with the financial aspects of the deceased estate.
17 I have read all of the affidavit evidence filed by the parties. It is lengthy and full of assertion and counter assertion. The assertions descend to allegations of undue influence to sign documents allegedly prepared by Shoshanah or her daughter, Ravenna, and assaults by them on the deceased. It is impossible to resolve such allegations on an application such as this, which must be determined promptly and with as much decency and respect for the deceased as can be obtained in all of the circumstances.
18 I have come to the view that I should exercise my discretion in favour of the child in whom the deceased reposed her principal trust and confidence concerning the significant issues which she faced in her later years. In this regard, there are a number of pieces of evidence which are either not in contest, or which have come from independent witnesses, which I believe are decisive to resolve this issue on the balance of probabilities.
19 First, there is no issue that the deceased had cancer and did not disclose this to her son Philip or his wife, notwithstanding that Philip's wife is a nurse with oncology and aged care experience. Philip and his wife were understandably upset that they were not trusted by the deceased with this knowledge and given the opportunity to participate in supporting and caring for her whilst she battled with cancer. On the other hand, the deceased disclosed her cancer to her daughter Shoshanah and grand-daughter Ravenna.
20 Second, the deceased willingly accepted the care and support of Shoshanah and Ravenna in dealing with her cancer treatment, her general wellbeing and other significant issues in life, including financial issues. This involved placing complete trust in them. In particular, the deceased gave each of them her enduring medical power of attorney. There can be no doubt that this power of attorney represented the true wishes of the deceased. It was witnessed by her treating general practitioner and a Royal District Nurse, each of whom certified that they believed the deceased was of sound mind and understood the importance of the document she was signing.
21 Third, in circumstances where the deceased was of sound mind, she authorised Shoshanah and Ravenna to act on her behalf in the highly delicate matter of obtaining a restraining order against her brother, leading to him being evicted from her home.
22 Fourth, there is the independent evidence of Susan Benn, an occupational therapist, who attended on the deceased at the request of Shoshanah. This evidence supports the uncontradicted evidence of Shoshanah and Ravenna that they were trusted with the responsibility of caring and supporting the deceased after she was diagnosed with cancer.
23 Further to these matters, the evidence to which I have referred supports the evidence of Shoshanah and Ravenna as to them being informed by the deceased as to her wishes concerning the means of disposing with her body after death. If the deceased was likely to express her wishes in this regard to anyone, it is most likely to have been to those in whom she chose to place principal trust for her care and support in her final years.
24 I will accordingly direct that the plaintiff, R. Shoshanah Keller, has the right to, and bears the responsibility for, disposing of the body of Sarina Keller, deceased, in her sole discretion. The originating motion and summons on originating motion will otherwise be dismissed. I will reserve liberty to apply.
25 Finally, in reaching my decision I have considered the conduct of Shoshanah towards her brother Philip since their mother's death. I cannot resolve the factual dispute as to the circumstances of Shoshanah's initial attempts to inform her brother of their mother's death. However, it is clear that the delay in even making that initial attempt was inappropriate and regrettable. Philip had a right to be told of his mother's death as soon as possible, if not by his sister, then another family member. I conclude by expressing the hope that decency and respect for the deceased can prevail in the further dealings between brother and sister with respect to the arrangements for the disposition of their late mother's body, and in respect of the ashes resulting from any cremation.
26 An issue arises as to whether I should make any order as to costs.
(Discussion ensued.)
[1] [1997] 41 NSWLR 680, 693-4.
[2] Unreported, Supreme Court of Victoria, Ashley J, 3 March 1997, [8].
[3] [1992] NTSC 17; (1992) 106 FLR 446.
[4] Ibid, 452.
[5] Unreported, Supreme Court of Victoria, Ashley J, 3 March 1997, [9].
[6] [2004] VSC 172; (2004) 14 VR 100.
[7] Ibid, [10]-[13].
[8] Ibid, [16].
[10] Ibid, [43].
[11] [2004] VSC 172; (2004) 14 VR 100, [10] (citations omitted).
Keller
Keller [2007] VSC 118
(1992) 106 FLR 446
(2004) 14 VR 100