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[2026] NSWSC 539
Supreme Court of NSW
2026-05-19
Williams J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Morgan v Morgan [2026] NSWSC 539
Hearing dates: 13 May 2026
Date of orders: 19 May 2026
Decision date: 19 May 2026
Jurisdiction: Equity - Duty List
Before: Williams J
Decision: See orders at [33].
Catchwords: SUCCESSION – Rights of burial or cremation – Nature and purpose of Court’s inherent jurisdiction – Determination of claim by daughter of deceased to have carriage of the cremation of the body of the deceased, who passed away more than a year ago, over the objection of the deceased’s wife who wishes for the State Coroner to investigate the death of the deceased – Where State Coroner declined to exercise coronial jurisdiction in relation to the death of the deceased in July 2025 and no application has been made to the Court for an order under Chapter 7 of the Coroners Act 2009 (NSW) that an inquest be held concerning the death of the deceased
Legislation Cited: Births, Deaths and Marriages Registration Act 1995 (NSW) ss 36, 37, 39
Coroners Act 2009 (NSW) ch 7
Probate and Administration Act 1898 (NSW) s 73
Public Health Regulation 2022 (NSW) s 104
Cases Cited: Brown v Weidig (2023) 22 ASTLR 386; [2023] NSWSC 281 State of New South Wales v Gill (2024) 115 NSWLR 536; [2024] NSWSC 1263
Category: Procedural rulings
Parties: Lynette Mary Morgan (Plaintiff)
Ying Morgan (Defendant)
Representation: Counsel:
Ms A Power (Plaintiff)
Ms Ying Morgan (Litigant in Person) (Defendant)
Solicitors:
Bay Legal (Plaintiff)
Ms Ying Morgan (Litigant in Person) (Defendant)
File Number(s): 2026/164761
Publication restriction: N/A
The plaintiff in these proceedings is the daughter of the late John Thomas Morgan.
The defendant is the plaintiff’s mother and the wife of Mr Morgan.
Mr Morgan passed away on 17 April 2025 at the Prince of Wales Hospital. The plaintiff wishes to make arrangements for the cremation of the deceased’s body in accordance with the wishes that the deceased expressed to his son and to his sister towards the end of his life. The defendant wishes to defer the burial or cremation of the deceased pending further investigations that she considers should be undertaken by the State Coroner in relation to the cause of the death of the deceased.
These reasons primarily concern the plaintiff’s application for an order that the body of the deceased be released to the plaintiff for the purpose of the plaintiff making cremation, interment and funeral or memorial arrangements for the deceased. [1]
The deceased passed away at the Prince of Wales Hospital on 17 April 2025 at the age of 77 years. The deceased is survived by his wife Ying Morgan (the defendant), his daughter Lynette Morgan (the plaintiff), his son Huw Morgan, and his stepson Albert Ruan.
Dr Arun Shrestha, a Registrar at Prince of Wales Hospital who was responsible for the deceased’s medical care immediately before his death, completed the form required to notify the Registrar of Births, Deaths and Marriages of the death and the cause of death pursuant to s 39 of the Births*,* Deaths and Marriages Registration Act 1995 (NSW) (the s 39 form). The form identifies neutropenic sepsis as the medical condition leading directly to the death of the deceased, acute myeloid leukaemia as an antecedent cause, and multiple myeloma as a significant condition contributing to his death. The form states that the death of the deceased is not a reportable death pursuant to ss 6, 23, 24 or 38 of the Coroners Act 2009 (NSW), and that the deceased did not die in circumstances where death was not the reasonably expected outcome of a health related procedure carried out in relation to the deceased.
According to the plaintiff’s evidence, the deceased had been diagnosed with acute myeloid leukaemia in about early 2025 and had been admitted to the Prince of Wales Hospital on several occasions in February, March and April 2025.
The defendant is a retired medical research scientist. On 30 June 2025, she wrote to the State Coroner alleging that the deceased had been “premeditatedly intentionally killed brutally” at the Prince of Wales Hospital. The letter stated that the defendant had gathered “pathological, pathophysiological and forensic evidences*, scientific knowledges, and the scientific journal literature reports”* which she would present to the State Coroner. The letter requested the State Coroner to arrange for the immediate transfer of the deceased’s body from Creightons Funeral Service to the State Coroner’s forensic examination facility at Lidcombe, and stated that the defendant wished to discuss with the forensic examiner “what I also would like to be examined”. The letter also stated that the defendant disputed the cause of death recorded in the s 39 form completed by Dr Shrestha and alleged that the form had been completed prior to the death of the deceased and was itself evidence that the deceased had been killed intentionally and with premeditation by the doctors attending on him at the Prince of Wales Hospital.
The State Coroner declined the defendant's application on 11 July 2025, and did not assume jurisdiction under the Coroners Act 2009 (NSW). No application has been made to this Court under Chapter 7 of that Act for an order that an inquest concerning the death of the deceased be held.
The defendant represented herself at the hearing on 13 May 2026. The defendant read her affidavit made on 8 May 2026 in which she deposed that she has “many concerns regarding the circumstances and cause of the deceased’s death”, without articulating those concerns. The defendant also deposed that she would take further steps, including a “review application to the Coroner” in relation to the circumstances of the deceased’s death within the next seven days. The defendant also deposed that “potential forensic evidence relevant to any such investigation” would be permanently destroyed by cremation. The defendant made lengthy submissions during the hearing in which she gave a very detailed account of her many criticisms of every aspect of the treatment and care that the deceased received at Prince of Wales Hospital in the months, weeks and days prior to his death and, in some instances, her criticisms of the failure to administer or the withholding of certain treatment that she considers should have been administered and the failure or refusal to undertake certain tests or investigations that she considers should have been carried out. The defendant expounded from the Bar table her theories about the cause of death of the deceased. The defendant accuses the Prince of Wales Hospital of “killing” the deceased, and of lying about it. The substance of the matters raised in the defendant’s submissions reflected the matters raised in her letter to the State Coroner on 30 June 2025.
As I have mentioned, the defendant gave evidence that she intends to take further steps in her quest for an investigation into the death of the deceased, including making a further application to the State Coroner in the near future. There is no evidence of any prospect that the State Coroner, having declined to exercise coronial jurisdiction on 11 July 2025, will now exercise jurisdiction in respect of the death of the deceased.
The deceased’s sister, Ms Janice Clapham, gave evidence that the deceased told her on several occasions in the few years prior to his death that he wished to be cremated. Ms Clapham and the deceased discussed those matters in the context of their joint visits to their elderly mother. The deceased’s son, Mr Huw Morgan, gave evidence that the deceased told him during one of his visits to the deceased in hospital in early March 2025 that he wished to be cremated and have his ashes interred at Palmdale Cemetery in the same place as his father’s ashes.
On 22 April 2025, the plaintiff attended Creightons Funeral Service at Palmdale Lawn Cemetery & Memorial Park, together with the defendant and Mr Huw Morgan, to make funeral arrangements for the deceased. During their meeting with the funeral director, the defendant stated that she wanted the death of the deceased to be investigated. That brought an end to the planning of the deceased’s funeral and cremation at that stage.
In early June 2025, the Prince of Wales Hospital advised the plaintiff that they could not continue to store the body of the deceased. Statewide Mortuary Transfer collected the body of the deceased from Prince of Wales Hospital on 12 June 2025 and delivered it to Creightons Funeral Service on 13 June 2025.
The plaintiff and Mr Huw Morgan began making arrangements for the cremation of the deceased’s body. They informed the defendant of those arrangements. On 17 June 2025, a solicitor acting for the defendant wrote to Creightons Funeral Service stating that the defendant wished for the deceased’s body to be transferred to the Coroner’s Court at Lidcombe for examination and requesting confirmation that the body would be made available for that transfer, failing which the solicitor expected to receive instructions from the defendant to make an application to the Court.
Creightons Funeral Service advised the plaintiff and the solicitor acting for the defendant that they could not transfer the deceased’s body to the Coroner’s Court merely on the defendant’s say so, and identified the steps that the defendant would need to take in order to engage with the State Coroner in relation to any investigation of the deceased’s death. As I have already mentioned, the State Coroner declined to exercise jurisdiction. The solicitor in question ceased acting for the defendant a short time later. No application was ever made to this Court.
The body of the deceased has been stored at Creightons Funeral Service since 13 June 2025. According to evidence given by the Funeral Service Manager, the body is being stored in refrigeration but this does not prevent the natural decomposition of the body. Creightons Funeral Service does not have the facilities to store the deceased’s body indefinitely. Creightons Funeral Service ordinarily charges a storage fee of $100 per day. It is not entirely clear from the evidence whether these fees have been charged to the plaintiff to date in the difficult circumstances of this case.
The Funeral Services Manager gave evidence that Creightons Funeral Service will only proceed with the cremation of the body of the deceased with either the consent of the defendant or pursuant to an order of this Court to release the body to the plaintiff or some other person for the purpose of cremation.
The defendant continues to withhold her consent to the cremation of the deceased’s body on the grounds explained at [8]-[10] above.
At the hearing of the plaintiff’s application on 13 May 2026, I raised with counsel for the plaintiff that the evidence adduced in support of the application did not include a death certificate for the deceased. The Court was informed that no death certificate is available. The plaintiff tendered a copy of a letter from the Registry of Births, Deaths & Marriages addressed to Mr Huw Morgan dated 24 June 2025. The letter refers to Mr Morgan’s application requesting the death certificate for the deceased and states that the Registry is unable to issue the requested certificate “as we have been unable to locate a registration for this event”. It therefore appears that the death of the deceased has not been registered under the Births*,* Deaths and Marriages Registration Act.
The plaintiff gave evidence that, shortly after the death of the deceased, she found a document stored in the Notes section of his iPhone entitled “Last will and testament for John Thomas Morgan b27-09-1947 on this day 25-07-**2025”. The date *“**25-07-*2025” is curious as it post-dates the death of the deceased by some months. The document states that the plaintiff is to be the executor of the estate. The defendant disputes the authenticity of the document and accuses the plaintiff of forging it. The plaintiff denies that allegation. Neither the plaintiff nor her brother has been able to locate any formal will made by the deceased or any other record of his testamentary intentions. For the purpose of the present application, it is not necessary for the Court to make any findings about the authenticity of the document in the Notes section of the deceased’s iPhone and whether it is a valid testamentary instrument.
The plaintiff gave evidence that she understands that the deceased’s principal asset was real property at Maroubra that he owned jointly with the defendant, and that the deceased’s interest in that property has passed to the defendant by right of survivorship. So far as the plaintiff is aware, the deceased also had a Mazda car, a self-managed superannuation fund, a Commsec share account and Commonwealth bank accounts. The plaintiff does not know the value of those assets. The plaintiff acknowledges that the superannuation fund may not constitute an asset of the deceased’s estate.
The plaintiff gave evidence that her main objective in commencing these proceedings is to ensure that the deceased’s body is cremated and his ashes scattered in accordance with his wishes so as to honour him and his life in a dignified way.
Section 36(1) of the Births*,* Deaths and Marriages Registration Act provides that, if a person dies in New South Wales, the death must be registered under the Act. As I have explained above, it appears that the death of the deceased has not been registered. I am satisfied on the basis of the s 39 form that the deceased died in New South Wales on 17 April 2025. The Court will therefore make an order under s 37 of that Act that the death of the deceased be registered. That order will require the Registrar to register the death pursuant to s 36(2) of that Act.
The inherent jurisdiction of this Court extends to the making of orders governing the disposal of the body of a deceased person. The exercise of the jurisdiction is governed by its purpose, which is to facilitate, so far as may be reasonably practicable in the circumstances of the case, “an orderly disposal of the mortal remains of a person whose dignity as a person, should be respected”. [2]
I respectfully adopt the following summary of the principles by Lindsay J, with reference to earlier authorities, in State of New South Wales v Gill: [3]
62. As has been noted, the starting point is to recognise that there is generally no property in a dead body of a human and that, in the determination of a dispute about disposal of a body, there is a strong public interest element that may prevail over private claims of any type.
63. The task of the Court is generally to make an evaluative judgement as to who is best suited or best able to deal with the remains of the deceased given the various factors identified in the authorities: Dayman v Dayman [2024] NSWSC 838 at [106], citing White v Williams (2019) 99 NSWLR 539 at [114].
64. The purpose for which the Court’s jurisdiction exists governs its exercise. It exists for the purpose of facilitating, so far as may be reasonably practicable, an orderly disposal of the mortal remains of a person whose dignity, as a person, should be respected.
65. Respect ordinarily requires that, so far as may be reasonably practicable, consideration be given in a timely and empathetic manner to the wishes or preferences of the person and the person’s “significant others” (including, particularly, members of his or her family, however defined) to which the person belonged. The concepts of “personhood”, “respect” and “belonging” are of central concern.
66. In all decision-making the central personality is the deceased, recognising that he or she must be taken, prima facie, to have lived and died in community with others with whom he or she may have shared perspectives on life, death and an afterlife.
67. Because the deceased is the focal point for decision-making his or her perspective should ordinarily, subject to practical constraints, prevail at the intersection between his or her wishes or preferences and those of any community to which he or she belonged.
68. I repeat what a [sic] wrote in Brown v Weidig at paragraphs [36]-[38], [60]-[61] and [63]:
“[36] The law governing the disposal of a dead body works best when there is a consensus about what is to be done or at least an acquiescence on the part of everybody who might reasonably be thought to have a right to object. The Court’s jurisdiction is available if, in a particular case, a problem needs to be solved by an independent adjudication. For the most part, in the ordinary course, the law of succession provides a template to guide decision making without recourse to the Court.
[38] Ultimately, in the absence of legislation governing the outcome of a case, the Court is required, in the determination of a dispute as to who has carriage of disposal of a body, to exercise a discretion taking into account a range of factors (depending upon the particular circumstances of the case and unable, prudently, to be stated exhaustively in the abstract) that may include:
(a) the logistics and available funding for disposal of the body;
(b) the wishes or preferences of the deceased, if known;
(c) the wishes or preferences of the community or communities, in which the deceased lived (including, but not necessarily limited to, members of family);
(d) any cultural or spiritual factors material to how the deceased lived life; and
(e) the accessibility of the deceased’s mortal remains to those who seek to mourn a death or to remember.
…
[60] Although convenience often attaches to use of the law of probate and administration of estates as a paradigm for decision making, a court is not obliged to employ it if the administration of justice in a particular case points in another direction. What is ultimately required is a decision, informed by practical wisdom, which allows a body to be disposed of in an orderly way with as much respect as may be possible for the dignity of the deceased and those of his or her community, or (as in this case) his or her communities, who mourn a death and yearn to remember a life.
[61] The necessity for the Court’s jurisdiction to be and remain flexible is reinforced by changes in the way members of contemporary society live and die in community. …
[63] … [Too] slavish an adherence to technical requirements of the law of probate, the administration of estates or, it might be said, family law in contested proceedings about the disposal of a dead body runs a risk of diverting the Court, and warring parties, from the purpose of the Court’s jurisdiction into unresolvable, collateral disputes about the validity of a will, or the existence or otherwise of one or more de facto relationships, for example. It is important that everybody remain focused on why the Court’s jurisdiction exists and how it can best be exercised.”
Listening to the defendant make her submissions in person at the hearing, it was plain to me that the defendant was and remains deeply distressed by the death of the deceased. It was also plain from the understandably emotional reaction of the plaintiff to the defendant’s submissions at the hearing that the plaintiff is also very distressed about the loss of her father and about her mother’s continued insistence that a forensic investigation is required before the deceased can be cremated in accordance with his wishes. The plaintiff’s brother and aunt, to whom the deceased communicated his wishes directly, are supportive of the plaintiff’s application. The deceased’s stepson informed the plaintiff that he did not wish to be heard.
The defendant’s views are strongly held, but they are not supported by any medical or scientific evidence, either from the defendant herself or from an independent source. The defendant’s submissions made from the Bar table during the hearing are not evidence. In circumstances where the State Coroner considered the defendant’s application and declined to exercise jurisdiction in July 2025, there is no real prospect of an inquest now being held in the absence of medical or scientific evidence casting doubt on the cause of the deceased’s death. The defendant has taken no steps since July 2025 to press for an investigation, and has simply refused permission for the cremation of the deceased. This has resulted in the deceased’s body being stored at Creightons Funeral Service for an extended period of time, depriving the deceased’s children and sister of the opportunity to carry out his wishes. This has been a source of great sorrow to them, in addition to their sorrow at the deceased’s passing. The body of the deceased cannot be stored indefinitely in any event.
Applying the principles set out above to all of those circumstances, it is my opinion that the Court should exercise its inherent jurisdiction to make orders that will facilitate the disposal of the remains of the deceased without further delay. The plaintiff, with the support of her brother and aunt, is the person best suited to do so in a manner that will afford to the deceased the respect of carrying out his wishes. The deceased’s family will then be able to mourn his death and remember his life, having the comfort of knowing that his wishes have finally been carried out.
As I have already mentioned, the Court is not called upon at this stage to determine the contest between the plaintiff and the defendant about the validity or invalidity of the document found in the Notes of the deceased’s iPhone as a testamentary document. The Court has power under s 73 of the Probate and Administration Act 1898 (NSW) to appoint an administrator of the deceased’s estate pending the determination of such disputes. Ordinarily, the Court will look to appoint as administrator an independent person who has no interest in the outcome of the probate dispute. In this case, the plaintiff seeks an order appointing herself as interim administrator, but for the limited purpose at this stage of applying for a death certificate in respect of the deceased and applying for a cremation permit pursuant to s 104 of the Public Health Regulation 2022 (NSW). I am satisfied that such an appointment should be made in order to ensure that the plaintiff has the authority to take all of the steps necessary to arrange the cremation of the deceased’s body in a manner that complies with the Public Health Regulation and all other applicable legislation and regulations. Given the limited scope of the powers to be conferred on the plaintiff as administrator, I am satisfied that it is appropriate to make that appointment without security and to dispense with an administration bond.
The plaintiff seeks a grant of leave to issue subpoenas to the entities named by the deceased in the document in the Notes section of his iPhone as entities with which he held accounts at the time of his death. The plaintiff’s purpose in issuing the subpoenas is to ascertain the extent of the deceased’s assets other than his interest in the Maroubra property which passed to the defendant by right of survivorship, and whether the value of those assets is such as to warrant continuing these proceedings in relation to the validity of that document and the pleaded claim for the appointment of the plaintiff (or any independent person) as interim administrator with broader powers. I am satisfied that leave should be given to the plaintiff to issue the subpoenas. Any documents produced will be able to be inspected by both the plaintiff and the defendant and will inform their further conduct of these proceedings. I note that the defendant has foreshadowed that she would be the appropriate person to be appointed as administrator to identify, collect and realise the assets of the deceased’s estate, although she has not filed any cross-claim seeking such orders.
Finally, the plaintiff seeks an order that her costs of these proceedings to date be paid out of the deceased’s estate on an indemnity basis or, if there are insufficient funds in the estate, by the defendant. An order in such terms would create uncertainty about whether or when the plaintiff is entitled to enforce the costs order against the defendant. The appropriate order in my opinion is to order that the plaintiff’s costs be paid out of the deceased’s estate on an indemnity basis, but to reserve leave to the plaintiff to seek a costs order against the defendant in the event that the plaintiff ascertains that the estate has insufficient funds to pay her costs.
For all of the foregoing reasons, the orders of the Court are as follows:
Order pursuant to s 37 of the Births Deaths and Marriages Registration Act 1995 (NSW) that the death of the late John Thomas Morgan (born 27 September 1947) (the deceased) aged 77 years at Prince of Wales Hospital on 17 April 2025 be registered under that Act.
Order that the body of the deceased, which is presently stored at Creighton Funeral Services at Palmdale, New South Wales, be released to the plaintiff for the purpose of the plaintiff making cremation, interment and funeral or memorial arrangements for the deceased in accordance with the Public Health Regulation 2022 (NSW) and all other applicable legislation and regulations concerning the disposal of human remains.
Order pursuant to s 73(1) of the Probate and Administration Act 1898 (NSW) that the plaintiff be appointed as administrator of the estate of the deceased pending the cremation of the body of the deceased and the issue of a death certificate for the deceased, with powers limited to:
(a) applying as administrator for a death certificate in respect of the deceased (and/or directing the funeral director with custody of the body of the deceased to do so); (b) applying, as administrator, for a cremation permit pursuant to s 104 of the Public Health Regulation 2022 (NSW); and (c) taking any other steps necessary to arrange for the cremation of the deceased’s body in a manner that complies with all other applicable legislation and regulations.
(a) ESuper for the production of documents relating to any self-managed superannuation fund of the deceased; (b) Australia and New Zealand Banking Group Limited for the production of bank statements for all bank accounts held by the deceased, whether in his sole name or jointly with any other person, during the period on and from 1 January 2024; (c) Commonwealth Bank of Australia for the production of bank statement for all bank accounts held by the deceased, whether in his sole name or jointly with any other person, during the period on and from 1 January 2024; and (d) Commsec for the production of documents in relation to all shares held by the deceased, whether solely or jointly with any other person, during the period on and from 1 January 2024.
(a) the Registrar of Births, Deaths and Marriages; and (b) Creightons Funeral Service at Palmdale, New South Wales.
**********
Prayers 1 and 2 of the Further Amended Summons filed on 13 May 2026.
Brown v Weidig (2023) 22 ASTLR 386; [2023] NSWSC 281 at [28] (Lindsay J).
(2024) 115 NSWLR 536; [2024] NSWSC 1263 at [62]-[68].
Paragraph 24 - "by" amended to "be".
Morgan
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