This matter came before me in circumstances of urgency on Friday, 26 February 2021. It concerns the right to bury the earthly remains of the late Anica Kanacki who died on 22 February 2021. The plaintiff is the executor named in what is said to be Mrs Kanacki's last will and testament executed on the 22 September 2020.
The need for an urgent application in relation to the matter arose because the person named as the second defendant, Dilbar (also known as Maria) Zasentseva procured the release of Mrs Kanacki's body from Fairfield Hospital into the hands of Joseph Medcalf Funeral Services, funeral directors selected by her who were named as the first defendant in the original summons filed in court on Friday. Mrs Zasentseva's claimed "right" to possession and disposal of the earthly remains of Mrs Kanacki is based upon a will appointing her executrix and making substantial bequests to her apparently executed on 28 August 2019.
As the form of orders I have pronounced make clear after service of the summons and my interim order made on Friday, the funeral directors returned Mrs Kanacki's body to Fairfield Hospital and Ms Zasentseva instructed solicitors to advise the plaintiff that she made no claim to be entitled to dispose of Mrs Kanacki's earthly remains and had no objection to the plaintiff undertaking those obligations, subject to being provided with notice of the funeral arrangements so she may attend if she wishes.
The somewhat sparse evidence I received on Friday has been substantially amplified by evidence received today. I have had regard to the affidavit of Mrs Kanacki's nephew, Sasa Demic, in which he outlines his involvement in his care of his aunt over recent years notwithstanding his normal residence in the Kingdom of Norway. The evidence he provides is quite fulsome as to his involvement and he states that he has attended Australia on a frequent basis to look after his aunt's interests, obviously up until the intervention of travel restrictions associated with the present pandemic. He was involved over the internet in the conferences with doctors caring for his aunt during her terminal illness and his views and wishes were consulted in relation to her treatment and accommodation.
So far as it may be relevant in circumstances I am about to refer to, Mr Demic appears to be the closest surviving relative of the deceased. He gives evidence of consulting her about her wishes in relation to burial according to the rites of the Anglican Church in Australia and for her interment with her late husband.
What is evident is that there is likely to be a dispute about the validity of the wills. It is evident from exhibit 1 which I refer to below and from what Mr Milanovic of counsel has told me that there were contested proceedings under NSW Trustee and Guardian Act 2009 (NSW) in the Protective List of the Equity Division before Lindsay J which proceedings only terminated by reason of Mrs Kanacki's death last week. I was not favoured with a copy of any written judgment.
I infer from what I have been told that protective orders were made for the management of Mrs Kanacki's estate and that the NSW Trustee and Guardian had been appointed manager. As I said, these seem to have been contested proceedings which were commenced if I followed Mr Milanovic correctly, in or about February 2020.
Although Mr Milanovic submits that the plaintiff's position is that despite needing assistance in the management of her financial affairs, Mrs Kanacki had full testamentary capacity as of the date of the last will, it is likely that that proposition will be disputed. So much is made clear by exhibit 1 where Messrs Turner Freeman, lawyers, acting for the second defendant, state that Ms Zasentseva's non-opposition to the orders proposed should not be treated as a concession about the validity of the last will, and it follows about the validity of the appointment of the plaintiff as executor.
I am also informed by Mr Milanovic that the will favouring Ms Zasentseva is likely to be impugned because: (a) it is not the last will but, (b) it is the plaintiff's case that the will was executed in circumstances bespeaking undue influence or other unconscionability. The circumstances were that Ms Zasentseva was a carer looking after Mrs Kanacki who had been appointed to that role by the commercial care organisation for whom she worked. I do note, however, that the will was drafted by a firm of solicitors, although not witnessed by them it appears. It seems from the contents of each of the wills that Mrs Kanacki has left a sizeable estate. There may well be litigation contesting probate in the matter.
By making the orders I have indicated, I am not in any way purporting to resolve such issue that may arise for determination in relation to which will is effective. The principles concerning the right to dispose of the earthly remains of a deceased person were fully discussed by Young J (as his Honour then was) in Smith v Tamworth City Council (1997) 41 NSWLR 680. It is not necessary for me to set out all of the general principles to decide this case. However, the starting point, where there is a will, is that the person named as the executor in the will is entitled to arrange for the burial provided the executor is ready, willing and able to do so.
Leaving aside questions about intestacy per se which do not arise here, if there are no executors and a valid will, eventually the right to bury the deceased will fall to the senior next of kin to adopt the phrase used in legislation not presently relevant: Coroners Act 2009 (NSW), eg s 6A, s 97; that is to say, to the highest ranking surviving family member. This would seem to be, on the evidence before me, Mr Demic.
It is not necessary to finally resolve these questions because, as I said, there is no contest from the only parties, the evidence suggests, might have a competing interest in the question and, accordingly, I will content myself by saying simply that on the material before me Mr Novakovic appears to be executor named in what is the last dated will, I say nothing about its validity and his application is supported by Mr Demic who, again on the material before me, seems to be the highest ranking surviving family member. He is also the principal beneficiary under the last will. The application is not now opposed by Ms Zasentseva.
For these reasons, I make the following orders:
1. Leave to proceed on the basis of amended summons deleting Joseph Medcalf Funeral Services as first defendant and adding South Western Sydney Area Health District as third defendant.
2. Note that through her solicitors, Messrs Turner Freeman, the second defendant Dilbar Zasentseva (also known as Maria Zasentseva) acknowledges service in accordance with the order of Friday 26 February 2021 and does not object to orders being made for the release of the body of the late Anica Kanacki to the plaintiff, subject to receiving notice of the Funeral arrangements so she may attend should she so wish.
3. Dispense with the need to serve the amended summons and the affidavits filed in court today on the second defendant given her non-opposition to the relief sought.
4. Note that her solicitors are instructed that the second defendant "will not be seeking to collect the late Mrs Kanacki's remains from Fairfield Hospital, nor will she be instructing Joseph Medcalf Funerals or any other funeral director to take steps to retrieve the late Mrs Kanacki's remains and hold a funeral, nor will she take any step to arrange or organise a funeral".
5. Order that the third defendant, South Western Sydney Local Area Health District release the body of the late Anica Kanacki to the plaintiff, Tihomir Novakovic or to such funeral director as he may nominate.
6. Drect that the amended summons and these orders be served on the third defendant as soon as that may practicably be done.
7. Mr Novakavic is to inform Ms Zasentseva of the funeral arrangements that he makes and, subject to public health orders which may limit the numbers who may attend a funeral, he should permit Ms Zansentseva to attend the funeral should she wish to do so.
8. Liberty to apply.
9. I direct the orders may be entered forthwith
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Decision last updated: 03 March 2021