Administration Act 1903, s 45(1)

Human Tissue and Transplant Act 1982

Inheritance (Family and Dependants Provision) Act 1972

Wills Act 1970 (WA)

Public Trustee v Loadsby (1908) 27 NZLR 801

1 HASLUCK J: The plaintiff issued an originating summons seeking orders pursuant to s 45(1) of the Administration Act 1903. A question has arisen as to where the body of the late Leida Tarik, who died on 6 October 2001, at the age of 80 years, is to be buried. The plaintiff seeks an order that the body of the deceased be buried in Perth, Western Australia, and various incidental orders. An interim order was made which restrained the first defendant from releasing the body to the second defendants until the hearing of the issues raised by the plaintiff's originating summons.

2 The plaintiff in these proceedings, Frederick Paul Manktelow, describes himself as the de facto spouse of the deceased. The first defendant is the executor and trustee of the last will and testament of the deceased dated 31 January 1996. The second defendants are the surviving children of the deceased. They are opposed to the relief sought. They say that their mother's body should be buried in the Barossa Valley in South Australia, close to where the deceased's son, Eero Tarik, resides.

3 The plaintiff says in his affidavit sworn 12 October 2001 that he is presently aged 93 years. He says that he commenced living in a de facto relationship in the early part of 1991 and lived continuously with the deceased until her death. They lived in his home at Unit 5, 6 Bland Place, Beechboro in the State of Western Australia. He says that the deceased had no home of her own.

4 On 31 January 1996, the deceased executed her last will and testament, which was prepared by the Public Trustee, being the first defendant in these proceedings. Under the terms of the will, the deceased bequeathed her entire estate equally to her grandchildren, being the children of the second defendants, upon trust until they attain the age of 21 years.

5 The deceased's will (omitting the inessential parts) reads as follows:

"THIS IS THE LAST WILL AND TESTAMENT of me LEIDA TARIK of 5/6 Bland Place BEECHBORO in the State of Western Australia

I REVOKE all previous Wills and Testamentary writings

I APPOINT the PUBLIC TRUSTEE in and for the State of Western Australia to be the Executor and Trustee of this my Will

SUBJECT TO the payment of my just debts funeral and testamentary expenses I DEVISE and BEQUEATH the whole of my real and personal estate to my Trustee UPON TRUST for equal division among such of the children as shall survive me and attain the age of twenty one years of my sons RAVO TARIK and EERO TARIK and of my daughter TEENA TARIK

I DIRECT that Sections 58 59 and 60 of the Trustees Act 1962 as amended shall not apply to this my Will

I DIRECT that my remains be buried"

6 The plaintiff's affidavit goes on to say that the deceased was born in Estonia on 2 April 1922 and lived there, as well as in Germany, for a period of years before migrating to Australia with her first husband, an Estonian, when she was around 30 years old. For the past 50 years, she has lived in Australia and was an Australian citizen.

7 The plaintiff says in his affidavit that during the 10-year period of the de facto relationship, the relationship between the deceased and her Perth-based daughter, Teena Tarik, was almost non-existent. He opposes the body being buried in South Australia and refers to the fact that in addition to himself and Ms Tarik, the majority of the grandchildren reside in Perth. Exhibited to his affidavit are various exchanges of correspondence which suggest that immediately following the deceased's death, the second defendants sought to have the body cremated. This proposal did not proceed, as the Public Trustee, as the executor and trustee named in the will, having regard to various provisions of the Cremation Act 1928, concluded that it was obliged to comply with the direction in the deceased's will "that my remains be buried". Further affidavits sworn by the plaintiff, his son, David Manktelow, and Barbara Hoilet, provide further particularity in regard to the nature of the plaintiff's de facto relationship with the deceased.

8 I digress briefly to observe that by s 8A of the Cremation Act, a medical referee shall not issue a permit where the deceased person has left a written direction that his body not be cremated. Section 13 provides that cremation is not permitted if objected to by next of kin unless there is a direction to the contrary in the deceased's will. In the present case, the deceased's direction that she be buried left no room for any suggestion that she wished to be cremated. These provisions make it clear that the executor should endeavour to give effect to the deceased's directions.

9 An affidavit was adduced on behalf of the Public Trustee from Sean William Conlan directed to the circumstances in which the will was executed and to the nature of the estate. According to Mr Conlan, the deceased saw one of the Public Trustee's wills officers on 17 January 1996. In the estimation of that officer, the deceased was able to fully understand what was explained to her and to give him clear instructions for her will. The instruction form included a notation that she was to be "buried". The will dated 31 January 1996 reflected her instructions and was executed in the presence of two witnesses in the manner prescribed by law. The Public Trustee has not been made aware of any wills subsequent to the will dated 31 January 1996.

10 As far as the Public Trustee is aware, the assets of the estate consist of the sum of $29,215.35 held in a Commonwealth Bank account and an entitlement to a refund of entry contribution of approximately $30,000 from the Mertome Village Nursing Home. There are some other comparatively minor assets, including furniture and effects.

11 Mr Conlan's affidavit goes on to refer to the difference of opinion that arose after the deceased's death as to what was to be done with the body. The deceased's three children wanted the body to be cremated. The Public Trustee's position was that the body should be buried, not cremated. Regardless of where the body is buried, the position of the Public Trustee is that the estate should only pay what it would cost to have a funeral and burial in Perth, that is to say, on the information given to the Public Trustee, the sum of $6,002. The Public Trustee will abide any ruling by the Supreme Court as to whether the body should be buried in Perth.

12 It became apparent at the hearing that the children of the deceased have abandoned their wish that the body be cremated. As indicated earlier, their present desire is that the body be transported to State of South Australia for burial in that State. These matters are referred to in the affidavit of Mrs Tarik sworn 16 October 2001. She takes issue with the plaintiff in many respects, including the question of whether he was in a genuine de facto relationship with the deceased. She refers to various incidents and asserts that the plaintiff was hostile to the deceased's family and interfered with congenial family relations. She says that she was present when her mother died at the Swan Districts Hospital on Friday, 5 October 2001. She says that a burial in the Barossa Valley will be consistent with her mother's prior associations with that region, including the presence there of one of the deceased's sons.

13 It emerges, then, that issue is drawn between the parties in that the plaintiff seeks an order that the body of the deceased be buried in Perth, Western Australia; the second defendants contend for a burial in South Australia..

14 I have already noted that the terms of the will are not specific in that the will simply contains a direction "that my remains be buried".

15 The plaintiff has applied to the court pursuant to s 45(1) of the Administration Act. The relevant provision is in these terms:

"(1) The Court may make such order with reference to any question arising in respect of any will or administration, or with reference to the distribution or application of any real and personal estate which an executor or administrator or Public Trustee may have in hand, or as to the residue of the estate, as the circumstances of the case may require."

16 The statutory power is expressed widely. In Beard v Baulkham Hills Shire Council (1986) 7 NSWLR 273, Young J said, at 280, that courts on quite a number of occasions have had to deal with problems as to who should be responsible for a funeral and where cremation should take place. This suggests that, in the present case, where there is a strongly contested issue as to the proper interpretation of a provision in the deceased's will and as to the manner in which the executor's duties should be performed, it is open to the executor to approach the court for a ruling on such questions.

17 Before returning to the circumstances of the present case, it will be useful to look at a number of legal principles bearing upon the matters in issue.

18 The plaintiff must establish that he has sufficient standing to make an application of the kind presently before the court. All developed legal systems have had to face the problem of adjudicating conflicts between two aspects of the public interest, namely, the desirability of encouraging individual citizens to participate actively in the enforcement of the law, and the undesirability of encouraging the professional litigant and the meddlesome interloper to invoke the jurisdiction of the courts in matters that do not concern him. Lord Diplock noted in Gouriet v UPW [1979] AC 435 at 496 that courts of justice do not act of their own motion. In our legal system, it is their function to stand by until their aid is invoked by someone recognised by law as entitled to claim the remedy in justice that he seeks.

19 A plaintiff has no standing to bring an action to prevent the violation of a public right unless he has a special interest in the subject matter over and above that of other members of the public. It seems that a strong attachment to the subject matter of the action may be enough to give a claimant for relief standing in which respect a de facto relationship or a special cultural interest will be sufficient. The deceased's right of burial can be enforced by members of the community in the public interest. Smith v Tamworth City Council (1997) 41 NSWLR 680; Onus v Alcoa of Australia Ltd [1981] HCA 50; (1982) 149 CLR 27.

20 I note also that provision is made under the Inheritance (Family and Dependants Provision) Act 1972 for a de facto widower to be a claimant. There is no definition of "spouse" in the Human Tissue and Transplant Act 1982, but the term is defined as including a de facto spouse in the Health Legislation Act 1986. These provisions suggest that in contemporary times, de facto relationships are increasingly being recognised as a form of association or status known to the law.

21 In the circumstances of the present case, I consider that the plaintiff has sufficient standing to seek orders pursuant to s 45(1) of the Administration Act. By reason of his prior association with the deceased, he has a basis for insisting that the first defendant perform an obligation contained in the deceased's will. The rules of court provide for the joinder of the parties, such as the second defendants, where it is just and convenient to determine questions or issues connected to the relief claimed. To establish the existence of a de facto relationship, it must be shown that at the time of death, the deceased and the other party were living together as part of the same household, as if they were married. Ingamells v WA Trustees Ltd & Anor, unreported; FCt SCt of WA; Library No 930117; 5 March 1993; Paterson v Bunter [2000] WASC 83. The evidence in the present case is sufficient in that regard. If I be wrong in such a finding, I consider that, in any event, the long association of the plaintiff and the deceased at the same address gives the plaintiff standing to seek relief of the kind sought.

22 The decided cases indicate that there is no property in a corpse and a man cannot, by will, dispose of his dead body. Williams v Williams (1882) 20 Ch D 659 at 665. The law is clear, however, that after the death of a person, his or her executors have a right to the custody and possession of the body (although they have no property in it) until it is properly buried. Doodeward v Spence [1908] HCA 45; (1908) 6 CLR 406. These principles were recently approved by Owen J in Boothman; Ex parte Trigg, unreported; SCt of WA; Library No 990031; 27 January 1999 and by Master Sanderson of the Supreme Court in this State in Roche v Douglas [2000] WASC 22. In the former case, Owen J said that five propositions enunciated by Young J in Smith v Tamworth City Council (supra) can be taken as representing the law in this State, that is to say:

"1. If a person has named an executor in his or her will and that person is ready willing and able to arrange for the burial of the deceased's body the person named as executor has the right to do so.

2. A person with the privilege of choosing how to bury the body is expected to consult with other stakeholders, but is not legally bound to do so.

3. Where no executor is named the person with the highest rank to take out administration will have the same position as the executor in proposition 1.

4. The right of the surviving spouse or de facto will be, preferred to the right of children.

5. Where two or more persons have an equally ranking privilege, the practicalities of burial without unreasonable delay will decide the issue."

23 It seems also that the holder of the right of burial cannot use the right in such a way as to exclude friends and relatives from expressing their affection for the deceased in a reasonable and appropriate manner.

24 In Calma v Sesar [1992] NTSC 17; (1992) 106 FLR 446, the facts were that the plaintiff and the first defendant were the mother and father respectively of the deceased. All were of Aboriginal descent. The deceased had died suddenly in Darwin and a dispute arose over whether his remains were to be flown to the deceased's birthplace and cultural homeland in Port Hedland, as the father wished, or were to be buried in Darwin, as the mother wished. There was no will. The court acknowledged that both parties had equal rights to possession of the body for burial.

25 Martin J stated at page 450 that there is a power and duty of a rightful executor or administrator to bury the deceased in a manner suitable to the estate which is left behind. The authorities establish that a person entitled to possession of a dead body may enforce that right through the courts.

26 It therefore seems, in regard to the circumstances of the present case, that the Public Trustee is the party entitled to possession of the body and has both a power and duty to bury the same, having regard to the provisions of the deceased's will. The question is, however, whether the Public Trustee is under an obligation to ensure that the body is buried in Perth, Western Australia.

27 It follows from earlier discussion that, in my view, this is a matter in respect of which the court has jurisdiction to make an order pursuant to s 45(1) of the Administration Act with a view to resolving "any question" arising in respect of the deceased's will.

28 It is clear from Calma v Sesar (supra) and the other decided cases that the executor has both a power and a duty to bury the deceased in a manner suitable to the estate which is left behind. Thus, in the present case, in the absence of any controversy, the first defendant could not be criticised if it proceeded to make arrangements for the body to be buried in Perth. On the other hand, the first defendant could be criticised if, in the case of a small estate such as this, it incurred unjustifiable expense in arranging for the body to be buried outside the jurisdiction.

29 This view of the matter is consistent with the general precept of the common law that questions affecting personal status and rights under a will to property other than immoveables are determined by the domicile of a person. In the case of a federation such as Australia, the relevant law is the State of Western Australia, this being the domicile of choice of the deceased. Cheshire and North: Private International Law (11th ed), pp 141 to 143. In that respect, it is significant that under the Wills Act 1970 (WA), questions of validity are to be determined by the law in force where it was executed or of the place where the deceased was domiciled or had his or her residence.

30 Accordingly, in my view, upon a proper interpretation of the deceased's will, the direction that she be buried, should be regarded as a direction that she be buried in Perth, Western Australia, as the place where she was domiciled and had her residence. The direction is not binding upon the Public Trustee, but clearly has a bearing upon the way in which the executor performs its duties. An executor will generally endeavour to give effect to the wishes of the deceased in regard to matters such as burial and cremation. This suggests that, in the present case, in the absence of any controversy, the executor would take steps to ensure that the deceased was buried in Perth. Such a finding is consistent with the view of Martin J in Calma v Sesar that the court must 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.

31 Does the presence of the controversy between the parties alter such a conclusion? The deceased's direction may arguably be ambiguous, but even if regard be paid to parol evidence with a view to resolving the ambiguity, the evidence led by the second defendants does not establish that the words should be taken as referring to a burial outside the State. Further, and in any event, the competing family or domestic considerations do not necessarily favour such a course. It is apparent from the five propositions approved by the court in Trigg's case that the right of surviving spouse or de facto - in this case, the plaintiff - will be preferred to the right of children, and in the case of a contest between parties whose claims are arguably of the same rank, the issue should be decided by the practicalities of burial without unreasonable delay. In the circumstances of the present case, these precepts reinforce my earlier determination that in order to give proper effect to the terms of the will, the body must be buried in Perth.

32 In summary, then, upon its proper interpretation the relevant provision of the will points to a requirement that the body be buried in Perth. No compelling argument has been put up by the second defendants as to why the body should be buried other than in Perth, which was the domicile of the deceased for many years before her death. There exists no good reason in law why the body of the deceased should be removed from Western Australia for burial in South Australia.

33 I will hear from the parties as to the form of the orders to be made.