Leeburn v Derndorfer [2004] VSC 172

8. By his will dated 13 July 1993, the deceased appointed his three children to be his executors and trustees and bequeathed the residue of his estate, after a gift of personal chattels to the son, to be divided equally between them. By cl. 4 he expressed his wish that his body be cremated and his wish was given effect to. His body was cremated at the Fawkner Crematorium on 30 March 2000 and the ashes were retained by the funeral director pending an instruction from the executors.

11. In the interval between 30 March and 22 May 2000 a number of discussions took place between Mr Leeburn and Mrs Derndorfer regarding the disposition of their father's ashes. There was some conflict between them before me as to what was said but it is not necessary that I resolve these disputes. It is sufficient that I record that, in a telephone conversation between them on 6 May 2002, Mrs Derndorfer adopted the position that the ashes should be interred at the Yan Yean Cemetery. She told me that this was a cemetery which appealed to her and that she and members of her family had also purchased plots there. Mr Leeburn was for dividing the ashes into three parts, so that each of the children might dispose of his or her one-third part as they pleased. No resolution was achieved.

14. The two sisters then discussed the matter, taking the view that a division of the ashes was unacceptable to them and that a decision must in any event be made. They opted for Yan Yean as this was acceptable to them and to members of their families.

17. On 22 May they collected the ashes from the funeral director and on the following day, 23 May 2000, the ashes were delivered to the Yan Yean Cemetery Trust which caused them to be interred in its cemetery. This was done without the knowledge or approval of Mr Leeburn.

20. The mode of interment was as follows. The ashes have been placed in a sealed non-erodable plastic container which has, in turn, been placed in a free-standing container which was buried in the earth. The photograph of the site which was in evidence shows a plaque marking the place of interment and a rose bush which I take to have been planted over the buried containers.

23. On 6 December 2002, Mr Leeburn commenced this proceeding seeking an order that the ashes of the father or part of them be delivered to him. As things turned out, what he now seeks is that the ashes be disinterred and that he be given one-third for disposal as he thinks appropriate. The remaining part of the ashes will then be delivered to the sisters for them to return to the Yan Yean Cemetery or as they think fit. There are a number of affidavits filed on behalf of each of the contending parties. For the most part, they deal with matters and conflicts which are of no relevance for my task. The deceased, in his will or otherwise, expressed no preference as to the place of disposition of his ashes.

26. I said at the outset that this is a difficult case. I have for this reason pondered long upon it. It is difficult because the issues are important to the parties. It was apparent to me that Mr Leeburn is very upset at the prospect that his father's remains are in a place not of his choosing and where it is not convenient for him to visit and pay his respects. Mrs Derndorfer, for her part, expressed the view that the division of the ashes as her brother proposed was disgusting, even sacrilegious. I suspect, too, that the division between them on this matter represents a manifestation of some more deep-seated hostility which I cannot resolve.

29. 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 become 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,[1] 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.[2]

32. In general terms, the law's solution for disputes as to the manner and place of disposition of a dead body is to select a person who is to have the right and responsibility for the disposition and then to leave the choice to that person.[3] But even this process of selection reflects an uncharacteristic awkwardness in the law's response.[4] The cases establish the general priority for selection for this office, in which the executor named in the will stands first, followed by those in order of entitlement to a grant of administration.[5] But even this order of entitlement has been varied to suit the exigency of the particular case and to meet the practicalities of the situation.[6] It may happen, too, that a person's right to administration is itself a matter of some difficulty.[7]

35. It is well established that the Court has the power to intervene in order to resolve disputes as to who is to undertake the task of disposing of the body and as to the manner and place of disposition. In Meier v Bell[8], Ashley J held that the proper procedural vehicle for such a claim was by proceeding under R. 54.02[9] and this was the procedure adopted in this case.

38. Those interested in this area of law owe a great debt to Young J of the Supreme Court of New South Wales for his valiant attempt to extract from the cases a coherent set of principles in his decisions in Beard v Baulkham Hills Shire Council[10] and Smith v Tamworth City Council[11] and in his extra-judicial writing.[12] In his judgment in Smith's case, his Honour sets out the law conveniently in fifteen propositions, to some of which I shall return. In his judgment, too, his Honour points out that there are here involved a number of different duties and rights and that these will not inevitably reside in the same person[13]. In the present case, however, this is of no moment because the contending parties were both the executors and the next-of-kin of the deceased, and I express no concluded view on it.

41. Happily, there is in this case no controversy as to who has the right and responsibility of disposing of the body of the late John Leeburn. He appointed three executors and they have assumed this obligation albeit without proving the will. In the ordinary course, their decision as to the manner and place of the disposition of their father's body would be decisive. There are, however, two features of this case which, even so, create difficulty: first the fact that their decision as to the disposition of the ashes was made without the knowledge and concurrence of all of them; and, second, the fact that the point at issue is the disposition, not of the dead body, but of the ashes following its cremation.

44. It was submitted on behalf of the son that the decision of his sisters to dispose of the ashes at Yan Yean Cemetery was that of two only of the executors and was therefore ineffective. I do not think that there is any substance in this submission. Generally speaking, the act of any one of multiple executors with respect to estate property will bind the estate.[14] In any event, the act of the two executrices in this case was not a dealing with respect to any property of the estate. The executors do not in any sense have any right of property in the body of the deceased; theirs is the right to possession of it for the purpose of burial or other lawful disposition.[15] As will be seen, a like right resides in them with respect to the cremated ashes of that body. If they enter into a contract for this purpose they are personally liable but with an executor's usual right of indemnity against the estate.[16] In any event, the question in this case is not a contest as to the validity of the executors' decision; it is a contest between the next-of-kin as to the mode of disposition of the remains of their father.

47. 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[17] and they may not exercise this power so as to exclude friends and relatives from expressing their affection for the deceased in a reasonable and appropriate manner.[18] Likewise, although the executors ought to have regard to the expressed wishes of the deceased[19] and to the cultural and spiritual values of the deceased,[20] they are not bound to give effect to them,[21] for it is not competent for a person to dispose of his or her own body by will or otherwise.[22] In the case of cremation, this statement must be subject to a statutory qualification which prohibits the trustee of a cemetery from giving the required permission for cremation if it appears that the deceased either in writing or orally in the presence of two witnesses has expressed a wish that his or her body be not cremated.[23] A further qualification concerns the removal from the body of a deceased person of tissue for medical or scientific purposes. Such a procedure is permitted only where the deceased either in writing or orally during his or her last illness and in the presence of two witnesses has expressed a wish that the removal take place.[24] Notwithstanding this, the overriding obligation of the executors is to dispose of the dead body promptly and decently by burial or by some other lawful means. And, when laid to rest, the body must not ordinarily be disturbed.[25]

50. In the case of cremation at least, it is at this point that the path through the judicial forest begins to peter out. In his Smith v Tamworth City Council proposition 8, Young J states that cremation is nowadays the equivalent to burial.[26] This is, of course, correct in the sense that the executors have available to them the choice of cremation in deciding as to the manner of disposition of the body.[27] But an important difference between cremation and other methods of disposition is that, after cremation, there remain the ashes. The obligations of the executors with respect to the body may be complete after cremation, but what rights and obligations do they have with respect to the ashes?

53. A remarkable feature of this case is the lack of authority on this topic upon which, it may be supposed, disputes have arisen from time to time since cremation became accepted in England[28] and in Victoria[29] as a lawful alternative to Christian burial.

56. In Robinson v Pinegrove Memorial Park Ltd[30] Waddell CJ in Eq said this:

"...it is my view that an executor has a right to possession of the ashes of a deceased who has been cremated to direct how they shall finally be disposed of and that this right will be supported by a court, particularly where the executor intends to act in accordance with the wishes of the deceased. I reach this conclusion by way of analogy from the rule of the general law that an executor has a right to possession of the corpse of the deceased for the purpose of its lawful disposal by burial or cremation or otherwise, which right, it seems to me, should be taken to extend to the ultimate disposal of the remains."

60. This was an unusual case where, after cremation, the ashes of the deceased were divided by direction of his son into two parts: one was given to the widow and the other retained by the son. The retained portion was placed in a rose garden at the Pinegrove Memorial Park. The deceased had in his lifetime expressed the wish that his ashes be taken to England and scattered over a park in Birmingham and the widow desired to comply with his wish. The executor, therefore, sued the memorial park and the son seeking an order that the portion retained by the son be delivered up to the executor so that he might entrust them to the widow to be disposed as the deceased wished. His Honour made the orders sought.[31]

63. Waddell CJ in Eq, in the course of his judgment, expressed his regret that the questions had not been fully argued as only the plaintiff executor was represented before him by counsel. Nevertheless, the decision is of great interest, not only because of the eminence of the judge, but also because it is one of the few cases, to which I have been referred or which I have found, which deals with the questions relating to ashes. Insofar as his Honour approached the question as being analogous to the right of an executor to dispose of the uncremated body, there are a number of points to notice.

66. First, it appears that the portion of the ashes which was the subject of the litigation in that case was already placed "in the rose garden space".[32] If by this, it means that the ashes had been placed in the ground, then, by analogy with the position of a buried body these would form part of the land in which they were buried.[33] It may have been however that the ashes were placed in a niche in a wall in the rose garden. Given his Honour's terminology, a more likely scenario is that the ashes were placed in the ground, but in a container designed to ensure that they did not become, physically at least, part of the soil. In such a case the closest analogy would be that of a body placed in a vault or mausoleum. It is difficult to describe them, in these circumstances, as having become part of the realty.

69. Mr Matthews in his article dealing with the rights of property in a dead body[34] expresses the opinion, as a practical solution rather than as one based on authority, that ashes which have been buried or envaulted should be treated as a buried or envaulted body, and that ashes which have been preserved in specie should be treated as bodily parts which have been preserved or mummified as medical or other specimens. For his purposes, this resolved the question whether it is possible to have property in them.[35]

72. The Matthews solution, however, does not provide an answer to a question which is very troubling in this case. This is whether the Court has power to order the disinterment of the ashes and, if so, how it ought to be exercised. I was, naturally enough, pressed as a precedent with the order in Robinson v Pinegrove Memorial Park[36] by which Waddell CJ in Eq directed the memorial park to deliver up the ashes to the executor. It is clear that his Honour saw his order as requiring that the ashes "be removed from one resting place to another" and that the executor's right to possession of the ashes was the equivalent of his right to possession of the unburied corpse.[37]

75. In the case of a buried body, the executors discharge their obligation by having the body buried. The body then becomes part of the land in which it is buried and therefore it becomes part of the real estate held by the cemetery trust. The executors have no further function to perform and no further interest in the remains. Their only interest may be in the contract entered into with the cemetery trust under which the body is accepted for burial.

78. Where the body has been cremated this is ordinarily done pursuant to an agreement between the person responsible for the disposal and a funeral director or, perhaps, with the trustees of the crematorium and the resultant ashes are later delivered to that person. In the present case, the funeral director delivered them to two of the three executors. In accordance with the dictum of Waddell CJ in Eq in Robinson v Pinegrove Memorial Park, which I have set out above, they received the ashes for the purpose of their lawful disposal, just as they had previously been entitled to the possession of the uncremated corpse.

81. While the analogy is a useful one, it does not sit comfortably with the position of the executors in the present case. In addition to burial, the ashes may be dealt with in a way that would not be possible with respect to a dead body: they may be sprinkled over or distributed loosely on the surface of the earth, they may be retained in an unburied state or they may be divided and the parts dealt with in different ways. Also, when they are buried[38], they are not subject to the qualified statutory prohibition against exhumation[39]. Moreover, so long as they are not dispersed or otherwise lose their physical character as ashes, they may be owned and possessed. To my mind, therefore, it is apt to characterise the legal status of the ashes as similar to that of the preserved body in Doodeward v Spence[40]. In this way the application of fire to the cremated body is to be seen as the application to it of work or skill which has transformed it from flesh and blood to ashes, from corruptible material to material which is less so. The legal consequence of this accords with what I apprehend to be the community attitude and practice. Ashes which have in this way been preserved in specie are the subject of ordinary rights of property, subject to one possible qualification. In this way, ownership in the ashes may pass by sale or gift or otherwise. The only qualification, which, if it exists, may require some working out, arises from the fact that the ashes are, after all, the remains of a human being and for that reason they should be treated with appropriate respect and reverence.

84. The next question is as to the legal interest of the executors in these ashes. They do not form part of the estate of the deceased so that they do not pass under the will, any more than a testator's mummified body. It seems to me that the interest of the executors in the ashes is that of a trustee. Again, adapting the analogy of Waddell CJ in Eq in the Robinson case, the executors as trustees hold the ashes for the purpose of disposing or dealing with them in a way that seems to them to be appropriate having regard to any direction of the deceased in the will or otherwise and having regard to the claims of the relatives or others with an interest.

87. The plaintiff as the son of the deceased seeks that the ashes of his father be disinterred and that he have one-third of them. The prohibition against exhumation, otherwise than by order of the Coroner or by licence of the Secretary to the Department of Human Services, does not apply to the removal of cremated ashes by the trustees of a cemetery[41]. I infer from this that it is lawful for the trustees of the cemetery to exhume the ashes and my attention has been drawn to no qualification, if there be any, to this power. It may be, however, that these trustees would have an interest in the making of an order such as is here sought for it would have the consequence of requiring the executors to request that the ashes be disinterred and removed. In these circumstances, it is desirable that the cemetery trustees be made parties to an application such as the present.

90. I should make mention, too, of the provisions of the Cemeteries and Crematoria Act 2003. This statute is to come into force on 1 July 2005 so that it has no prescriptive force in the present case. I refer to it only as an indication of the community's attitude to the matters with which I am concerned. It is not required in that statute that cremated human remains be interred or disposed of in a public cemetery[42]. Moreover, by s. 77, rights are given to the holder of a right of interment to remove cremated human remains from site provided they are in a receptacle. No exhumation licence is required[43]. This suggests that dealings with the ashes are to be treated with greater flexibility than is the case with uncremated remains. In particular, where the ashes are in a suitable container, there is little restraint upon their removal from one place to another.

93. The next question is whether the executors have the power to divide the ashes and to give a share to each of the children of the deceased and, further, whether I have the power to direct that this be done. Again, I am here in uncharted territory. Adopting the analogy of Waddell CJ in Eq in the Robinson case, I bear in mind that such a course would be unthinkable in the case of an unburied corpse and I am conscious of the revulsion expressed by Mrs Derndorfer to such a course. In Fessi v Whitmore[44], Judge Boggis QC, sitting as a judge in the Chancery Division, peremptorily dismissed as "wholly inappropriate" a suggestion by the mother of a deceased child that his ashes be divided between her and her estranged husband. In that case the father did not agree to this course. Nevertheless, the evidence before me shows that it is not an uncommon practice in our community to divide the ashes of a deceased and to distribute them among members of the family.[45] It is not prohibited by any statute. I conclude, therefore, that it is within the powers of the executors in possession of the ashes to deal with them in this way and that the Court might, in the appropriate case authorise or direct that this be done. Nevertheless, I will not exercise this power in the present case.

96. I decline to make the orders sought by Mr Leeburn for a number of essentially discretionary reasons. First and foremost, I am troubled by the long period of time which has been permitted to elapse since the death of the deceased. It was never satisfactorily explained to me why it took two years and nine months to institute this proceeding. The deceased's remains have been permitted to lie at Yan Yean now for over four years. To my mind this is a very powerful reason for not disturbing them. Second, notwithstanding my sympathy for his position, I am not satisfied that the proper course is to divide the ashes as Mr Leeburn asks. This would violate the instincts of Mrs Derndorfer and offend the members of her family for whom the Yan Yean Cemetery is considered an acceptable last resting place. While it may not be determinative, I cannot also ignore the fact that the majority of the executors have selected this location. I remind myself of the traditional reluctance of the Court to interfere with an executor's decision on this matter. Moreover, I am not satisfied that the choice of Yan Yean as the last resting place of the late John Leeburn was in fact inappropriate. The application will be dismissed.

[1] Burnes v Richards (1993) 7 BPR 15,104 at 15,107, per Cohen J; Warner v Levitt (1994) 7 BPR 15,110 at 15,110, per Brownie J; Re Lochowiak (deceased) [1997] SASC 6301, per Debelle J.

[2] See, for example, Calma v Sesar [1992] NTSC 17; (1992) 2 NTLR 37 at 41 per Martin J.

[3] Brown v Tullock (1992) 7 BPR 15,101 at 15,102, per Waddell CJ in Eq.

[4] In Warner v Levitt (1994) 7 BPR 15,110 at 15,113, Brownie J spoke of the artificiality of carrying out an investigation as to who is entitled to administration in a case where there is no expectation that this will occur.

[5] Smith v Tamworth City Council (1997) 41 NSWLR 680 at 691, per Young J; Meier v Bell (unreported, 3 March 1997, Sup Ct of Vic, Ashley J) at p 6.

[6] See, for example, Jones v Dodd [1999] SASC 125; (1999) 73 SASR 328 at 336 and Calma v Sesar [1992] NTSC 17; (1992) 2 NTLR 37 at 41 per Martin J.

[7] See, for example, Privet v Vovk [2003] NSWSC 1038, where the claim of the applicant depended upon proof of his parent's valid marriage.

[8] Unreported, 3 March 1997, Sup Ct of Vic, Ashley J, at p 6. Jurisdiction was accepted by the parties before me.

[9] But compare Fessi v Whitmore [1999] 1 FLR 767 at 769-70, per Judge Boggis QC.

[10] (1986) 7 NSWLR 273.

[11] (1997) 41 NSWLR 680.

[12] PW Young, "The Exclusive Right to Burial" (1965) 39 ALJ 50. Other useful analyses are to be found in SG Hume, "Dead Bodies" [1956] SydLawRw 8; (1956) 2 Sydney Law Review 109; R Atherton, "Who owns your Body?" (2003) 77 ALJ 178; R Atherton, "Claims on the Deceased: the Corpse As Property", (1999) 7 JLM 361; L Griggs and K Mackie, "Burial rights: the Contemporary Australian Position" (1999) 7 JLM 404, and in the fascinating article by Paul Matthews, "Whose Body? People As Property" (1983) 36 Current Legal Problems 193.

[13] (1997) 41 NSWLR 680 at 689-90.

[14] Halsbury's Laws of Australia [395-4025].

[15] Williams v Williams (1882) 20 Ch D 659 at 664, per Kay J; R v Price (1884) 12 QBD 247 (father's right to possession of the body of a deceased child for the purpose of burial).

[16] Smith v Tamworth City Council (1997) 41 NSWLR 680 at 694.

[17] Smith v Tamworth City Council (1997) 41 NSWLR 680 at 694.

[18] Manketelow v Public Trustee [2001] WASC 290 at [23], per Hasluck J; Re Lochowiak (deceased) [1997] SASC 6301, per Debelle J; Jones v Dodd [1999] SASC 125; (1999) 73 SASR 328 at 336 [51], per Millhouse, Perry and Nyland JJ. Smith v Tamworth City Council (1997) 41 NSWLR 680 at 694.

[19] Privet v Vovk [2003] NSWSC 1038 at [13], per Bryson J.

[20] Jones v Dodd [1999] SASC 125; (1999) 73 SASR 328 at 336 [51], per Millhouse, Perry and Nyland JJ.

[21] I put to one side the rather different case where the deceased has by will established a valid trust for the maintenance of a place of his or her burial, of which Pirbright v Salwey [1896] WN 86, is an example.

[22] Williams v Williams (1882) 20 Ch D 659 at 659, per Kay J; Meier v Bell (unreported, 3 March 1997, Ashley J, 4518/97 at p. 6)

[23] Cemeteries Act 1958 s 77(2). Cf In re Dixon [1892] P 386 at 393, per Dr Tristram QC (an executor cannot deny his testator a right to a Christian burial without the deceased's sanction).

[25] Cemeteries Act 1958 s 48 (subject to certain exceptions). See too, Beard v Baulkham Hills Shire Council (1986) 7 NSWLR 273 at 278 per Young J; In re St Mary's Churchyard, Alderley [1994] 1 WLR 1478 at 1483, per Lomas Ch.

[26] Smith v Tamworth City Council (1997) 41 NSWLR 680 at 694.

[27] It would seem that in Australia this is a much availed of option. Cremations in Sydney represented some 65% of disposals of bodies in 1997: P Vines, "Resting in Peace? A Comparison of the Legal Control of Bodily Remains in Cemeteries and Aboriginal Burial Grounds in Australia" [1998] SydLawRw 3; (1998) 20 Sydney Law Review 78 at 91 note 58.

[28] In R v Price (1884) 12 QBD 247 at 254-5, Stephen J concluded that the disposal of a human body by cremation was not a criminal offence unless, by the manner of its performance, it amounted to a public nuisance. The practice of cremation was not regulated in England until the Cremation Act 1902. See P Matthews, "Whose Body? People As Property" (1983) 36 Current Legal Problems 193 at 197.

[29] The practice was first regulated in Victoria by the Cemeteries Act 1903

[31] In Smith v Tamworth City Council (1997) 41 NSWLR 680 at 689, Young J concluded his discussion of this case with the remark that "this conclusion may be out of kilter with some of the legal principles I have been considering", but without specifying how this was so.

[32] (1986) 7 BPR 15,097 at 15,097 and 15,098.

[33] Doodeward v Spence [1908] HCA 45; (1908) 6 CLR 406 at 412, per Griffith CJ.

[34] P Matthews, "Whose Body? People as Property" (1983) 36 Current Legal Problems 193.

[35] Such preserved parts may be the subject of property: Doodeward v Spence [1908] HCA 45; (1908) 6 CLR 406.

[38] "Bury" includes placing the body in a vault or mausoleum whether above or below ground: Cemeteries Act 1958 s 2A(b).

[39] Cemeteries Act 1958 s. 48(5).

[40] [1908] HCA 45; (1908) 6 CLR 406 at 412, per Griffith CJ.

[41] Cemeteries Act 1958 s 48(5).

[44] [1999] 1 FLR 767 at 770.

[45] The evidence of funeral Director, Arthur Benjamin O'Connor was that one in ten cremations involves the division of ashes amongst family members.