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[2025] NSWSC 839
General information, not legal advice.
Supreme Court of NSW
2025-07-29
Slattery J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Walker v Leneve [2025] NSWSC 839
Hearing dates: 4 April 2025 and written submissions on 18 April 2025.
Date of orders: 29 July 2025
Decision date: 29 July 2025
Jurisdiction: Equity - Probate List
Before: Slattery J
Decision: Orders made for the daughter to be acknowledged on the headstone of the deceased’s grave. No commission awarded for the mother’s pains and troubles but the mother is reimbursed in full for the liabilities she incurred as administrator including her legal costs.
Catchwords: SUCCESSION — Administration of estates — Persons entitled on intestacy – deceased dies intestate – dispute as to whether his mother is his next of kin – a young person claims to be the deceased’s daughter – DNA testing establishes that the claimant is the deceased’s daughter – the deceased’s mother contends that he did not acknowledge his daughter during his lifetime – the deceased’s mother began to administer his estate acting in good faith on the basis that she was the deceased’s next of kin – two disputes remain – whether the daughter should be referred to on the headstone of the deceased’s grave and whether the mother is entitled to commission for her “pains and troubles” for administering the estate during the period of her practical administration before a formal grant.
Legislation Cited: Cemeteries and Crematoria Act 2013
Charter Establishing Courts of Judicature in New South Wales, 13 October 1823 (Third Charter of Justice)
Civil Procedure Act 2005
Probate and Administration Act 1898
Succession Act 2006
Uniform Civil Procedure Rules 2005
Cases Cited: Bodger v Arch (1854) 10 Exch 333
Brown v Weidig [2023] NSWSC 281
Darcy v Duckett [2016] NSWSC 1756
Deigan v Fussell [2019] NSWCA 299
Jones v Dodd (1998) 73 SASR 328
Marshall v Elson [2023] SASCA 1
Mulray v Ogilvie (1987) 9 NSWLR 1
Re Augustine’s Churchyard Droitwich Spa [2016] 1 WLR 3365
Smith v Tamworth City Council (1997) 41 NSWLR 680
State of South Australia v Smith (2014) 119 SASR 247
White v Willaims (2019) 99 NSWLR 539
Texts Cited: Dal Pont & Mackie’s Law of Succession (2013, LexisNexis)
K Falconer, “Australian Burial Law 25 Years on from Smith v Tamworth City Council” (2022) 96 ALJ 581
S Janes, D Leibhold & P Studdert, Wills, Probate and Administration Law in New South Wales (2nd ed, 2020, Thomson Reuters)
Category: Principal judgment
Parties: Plaintiff/Cross-Defendant: Ann Kathleen Walker
Defendant/First Cross-Claimant: Elizabeth Denise Leneve
Second Cross-Claimant: Maddison Elizabeth Leneve by her Tutor, Nicole Anne Leneve
Representation: Counsel:
T Bland (Plaintiff/ Cross-Defendant)
D Yazdani (Defendant/Cross-Claimant)
Solicitors:
Evans & Wislang (Plaintiff/ Cross-Defendant)
Wilkinson Throsby & Edwards (Defendant/Cross-Claimant)
File Number(s): 2024/00326508
Publication restriction: N/A
Scott Alexander Walker (the “deceased”) died between 12 October and 13 October 2022 without having made a will. Disputes have now arisen about the administration of the deceased’s estate between his mother, Ann Kathleen Walker, and his daughter, Maddison Elizabeth Leneve who knew little of one another until after his death.
These reasons resolve two remaining disputes between the deceased’s daughter and her paternal grandmother. The parties in these proceedings referred to one another by their first names and without intending any disrespect to any party the Court will adopt the same convenient practice.
After the deceased’s death Maddison, assisted by her mother, Nicole Ann Leneve (Nicole) and by her maternal grandmother, Elizabeth Denise Leneve (Elizabeth) advanced a claim that she was the deceased’s daughter. The deceased’s mother, Ann, would not accept that claim, partly because the deceased had not acknowledged Maddison as his daughter during his lifetime. Whilst the dispute remained unresolved, Ann commenced to administer his estate.
Eventually Ann commenced proceedings. By her Statement of Claim filed on 3 September 2024, Ann sought administration of the estate on intestacy, claiming to be the deceased’s next of kin.
By her Cross-Claim filed on 2 October 2024, the Defendant, Elizabeth, sought a grant of letters of administration of the estate on intestacy for Nicole, as Maddison’s tutor.
Maddison also sought declarations in her Second Cross-Claim that she was the deceased’s daughter and sought orders to allow DNA testing. The paternity issue was resolved in December 2024 following DNA testing, ordered by Lindsay J in November 2024. The results of these tests sufficiently established that Maddison is the deceased’s daughter. Ann abandoned her claim to administration of the estate, acknowledging Maddison as the deceased’s next of kin and person primarily entitled to administration: Succession Act 2006, s 127(1). The Court granted administration of the estate by consent to Maddison by her tutor, Nicole on 7 February 2025.
But two issues remain. The first issue is whether Maddison should be named on the headstone to the deceased’s grave. This issue only emerged after the DNA testing confirmed that Maddison was the deceased’s daughter.
The second issue is whether Ann is entitled to reimbursement of the expenses she incurred in anticipation of a grant to her of administration of the deceased’s estate and compensation by way of commission for her “pains and troubles” in doing work on behalf of the deceased’s estate.
The proceedings were argued in the probate motions list on 4 April 2025. Mr T Bland appeared for Ann, instructed by Evans & Wislang. Mr D Yazdani appeared for Elizabeth and Maddison, instructed by Wilkinson Throsby & Edwards. There was insufficient time to complete submissions during the Probate List on 4 April 2025 in relation to these two remaining issues in dispute. Written submissions were filed on 18 April pursuant to leave.
The deceased, a train driver, resided in the Sydney suburb of St Mary’s. He never married but he had a relationship with Nicole through which Maddison was conceived. The deceased did not confirm Maddison’s birth or his paternity either to Ann or to his siblings during his lifetime. But both Ann and his siblings became aware of Maddison and her claimed relationship with the deceased before he died.
Initially after Maddison’s birth in October 2014 Nicole assumed the deceased would retain an active role in their child’s life. Prior to Maddison’s birth, Nicole says the deceased told her he did not want to be part of Maddison’s life. But he attended Liverpool Hospital in the days following her birth. He was listed as the father and the informant on the Maddison’s birth certificate. Nicole says the deceased also purchased gifts for Maddison and spent time with her on some limited occasions early in her life, which the Court accepts.
Nicole says, and the Court accepts, that in about 2020, she and the deceased engaged family lawyers and came to a financial settlement regarding Maddison’s future. That arrangement included consent orders that the deceased would not have parental responsibility for Maddison. But the deceased nevertheless accepted a duty to support Maddison and continued to make child support payments for her until his death.
The deceased died suddenly and unexpectedly between 12 October and 13 October 2022. He was buried on or about 4 November 2022 in the Eastern Suburbs Memorial Park which is administered by Southern Metropolitan Cemeteries NSW. Although the evidence of ownership is scant, it is not disputed that both Ann and her daughter Lisa, the deceased’s sister, purchased and now own the interment rights conferred under the Cemeteries and Crematoria Act 2013 to the burial plot where the deceased is buried. There is capacity in the plot for other burials.
Ann and Lisa arranged the deceased’s funeral and burial. Neither Nicole, nor Maddison, attended the funeral in person, although Nicole watched by AVL. The acquisition of the burial plot and the making of the burial arrangements took place on Ann and Lisa’s belief that they were the deceased’s next of kin and consequently without consulting Maddison or Nicole.
A headstone for the deceased’s grave has since been commissioned, although at the time of the hearing it had not been completed and installed. Ann had commissioned the headstone by paying a deposit on 22 January 2025 after the DNA results had established Maddison’s paternity. It is unclear on the evidence whether Lisa is also a party to the headstone contract. The instructions for the engraving on the headstone include the following references to the deceased’s family and do not include any reference to Maddison.
“In loving memory of
SCOTT ALEXANDER WALKER
25.7.1977 – 13.10.2022
Beloved Son of Ann
Cherished Brother of Lisa & Craig
Adored Cousin and Friend”
Nicole seeks to have Maddison’s name on the headstone with the following reference, “Father of Maddison Elisabeth Leneve”. She submits that this should be inscribed in place of “Adored Cousin and Friend”. Ann resists this course.
Ann says that she was first made aware that her son might be Maddison’s father in 2014, when Elizabeth, contacted her to inform her about Maddison’s birth. Ann deposed that there was no further mention of Maddison in their family until after her son’s death. The Court finds this difficult to accept. Sufficient was known to the deceased’s family of Maddison’s claims that she is likely to have at least been a topic of discussion in the deceased’s family before his death.
From November 2022, a month after the deceased’s death, Nicole and Elizabeth made attempts to contact Ann and Lisa concerning Maddison’s relationship with her paternal family. The deceased’s family members were wary about Nicole and Elizabeth’s approach. They largely rejected Nicole and Elizabeth’s attempts to contact them. They claim this was the appropriate stance to take because they say that the deceased had always denied to them that he was Maddison’s father.
It is puzzling that the deceased would have denied to Ann and Lisa that he was Maddison’s father. After all, he was the informant of her birth, as recorded on her birth certificate and he had agreed to pay child maintenance throughout her life without disputing paternity. The Court can accept Ann’s testimony that the deceased denied he was Maddison’s father. If that is what the deceased said, it was not correct. Ann’s testimony nevertheless indicates that she was aware that Maddison claimed to be the deceased’s daughter and was therefore a claimant to the whole of his estate, even though Ann discounted that claim as lacking substance.
On 7 February 2025, after the DNA tests were available, the Court ordered in the Probate List: (1) that letters of administration of the intestate estate of the deceased be granted to Nicole Anne Leneve as tutor for Maddison Elizabeth Leneve; (2) that the matter be remitted to the Registrar in Probate to complete the grant; (3) that the question of the parties’ costs be reserved; (4) that the costs that each party might seek to recover from the other from that day forward would be capped at a maximum of no more than $3000 (plus GST) pursuant to Uniform Civil Procedure Rules 2005*,* r 42.4; and, (5) made directions for the identification of any remaining issues, including the recovery of expenses. The cost capping order was made partly because of the limited monetary value of the present dispute and the need to keep the expenditure of costs proportionate: Civil Procedure Act 2005*,* s 60.
Some additional facts are relevant to the determination of the first issue. Now that Maddison by her tutor Nicole is the administrator of the deceased’s estate, Ann claims reimbursement of her expenditure on behalf of the estate. The claimed reimbursement falls into two different categories. In relation to the deceased’s burial and headstone Ann has incurred: (a) headstone costs of $2,785.00 (which she paid on 22 January 2025 and seeks reimbursement from the estate) and a balance of $3,165.00 (which is yet to be paid, and for which she also seeks reimbursement from the estate); and (b) funeral and burial costs which she paid on 3 November 2022, and for which she also seeks reimbursement.
Maddison has no objection to the estate paying for the deceased’s headstone totalling $5,950.00. But she submits that it should be a condition of reimbursing the sum of $2,785 to Ann and the estate paying the balance of $3,165.00 (and therefore relieving Ann of that liability) and that Maddison’s name be inserted on the headstone. Reimbursement from the estate of the funeral costs and expenses for the deceased are not in dispute between the parties nor is the reimbursement of various other costs in contest between the parties.
The deceased’s death appears to have prompted Ann and Lisa to purchase the burial plot for Ann and for her children, including the deceased, who is now buried there. Neither Ann nor Lisa seeks reimbursement of the cost of the burial plot. Ann acknowledges that when she acquired the plot, she was acting in her own interests and that of her family, for whom the plot was purchased.
Maddison by her tutor Nicole wants to have her name inscribed on the deceased’s headstone. But Ann refuses and also submits that she now controls the deceased’s burial plot and is entitled to refuse the change requested. This issue must now be resolved. The parties’ submissions on the subject are identified during the Court’s analysis below.
The applicable legal principles have evolved in recent years. The classic authority in this State in this area is the decision of Young J in Smith v Tamworth City Council (1997) 41 NSWLR 680, which resolved a contest as to whether the biological mother of a child who had been adopted by a court order for over 20 years, had any right to have her name on the child’s headstone. Young J resolved the contest in Smith against the biological mother making the following relevant statements:
“[At 681] The right to erect a headstone and…the right to choose the words thereon, is the right of the person who owns the burial plot, although, while there is no equitable right to close blood relatives of the deceased to have themselves mentioned on the headstone, or at least an additional headstone erected by them, that person cannot completely deny those relatives access to the grave.
…
[At 691] It can be seen from the cases that where a person has named an executor, that named executor has the primary privilege of burying the deceased’s body. Where there is no executor named, and the deceased leaves an estate, the person entitled to administration is usually the person who is responsible for the burial of the body and for the payment of the funeral expenses. That person may recoup such expenses out of the estate. As the burial usually takes place before there is a grant of administration, one looks to see the person who is most likely to get the grant of administration. As the grant follows interest, As the grant follows interest, In the Estate of Slattery (1909) 9 SR (NSW) 577; 26 WN (NSW) 116, the person with the largest interest will normally be the person who is the one expected to bury the body.
…
[At 693 – 694]…[W]hat is the current legal position with respect to the right of burial in New South Wales? It is useful to state the propositions that follow from the above analysis and from the analysis subsequently appearing in these reasons before dealing with the facts and submissions in the present case.
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. Apart from appointing an executor who will have the right stated in proposition 1, and apart from any applicable statute dealing with the disposal of parts of a body, a person has no right to dictate what will happen to his or her body.
3. A person with the privilege of choosing how to bury a body is expected to consult with other stakeholders but is not legally bound to do so.
4. Where no executor is named, the person with the highest right to take out administration will have the same privilege as the executor in proposition 1.
5. The right of the surviving spouse or de facto spouse will be preferred to the right of children.
6. Where two or more persons have an equally ranking privilege, the practicalities of burial without unreasonable delay will decide the issue.
7. If a person dies in a situation where there is no competent person willing to bury the body, the householder where the death occurs has the responsibility for burying the body.
8. Cremation is nowadays equivalent to burial.
9. A person who expends funds in burying a body has a restitutionary action to recover his or her reasonable costs and expenses.
10. A right of burial is not an easement, but a licence: it is irrevocable once a body has been buried in the licensed plot.
11. The cemetery authority is able to make reasonable by-laws as to the maintenance of the appearance of the cemetery.
12. Subject to such by-laws, the holder of the right of burial has the power to decide on the appearance of the grave and headstone.
13. The reasonable cost of a reasonable headstone is recoverable from the deceased's estate.
14. The holder of the right of burial cannot use his or her right in such a way as to exclude friends and relatives of the deceased expressing their affection for the deceased in a reasonable and appropriate manner such as by placing flowers on the grave.
- After the death of the executor or administrator, the right to control the grave passes to the legal personal representative of the original deceased, not the legal personal representative of the holder of the right of burial.”
…
[At 697] Equity acts as a court of conscience and the conscience is what is right in the eyes of the community for the time being”
[At 699] Thus, the authorities show that the right to erect the headstone is the right of the person who owns the burial plot. The plaintiffs say that there is at least an equitable right for close blood relatives of the deceased to have themselves mentioned on the headstone or at least an additional headstone erected by them. The authorities show no such right. Subject to the rules and regulations of the cemetery, it is for the person with the burial right to choose the words of the headstone.
Propositions 1 and 4 are of importance here. Although it was not evident when the deceased was buried, it is now clear that Maddison was the person with the highest right to take out administration and would have been able to arrange for the burial of the deceased’s body had her relationship to the deceased then been publicly established.
The law has developed since Smith v Tamworth City Council was decided: cf K Falconer, “Australian Burial Law 25 Years on from Smith v Tamworth City Council” (2022) 96 ALJ 581). Lindsay J provides a comprehensive survey of those developments in Brown v Weidig [2023] NSWSC 281 at [23] – [66] on which I gratefully draw.
In Brown v Weidig Lindsay J was faced with deciding upon the disposal of the body of a deceased man of mixed aboriginal and non-aboriginal descent who died intestate. Lindsay J was dealing with issues of the place of burial and of cremation but the principles he there surveyed apply to the present question of inscriptions on headstones. It is not necessary to set out Lindsay J’s survey in Brown v Weidig in full here, but the following statements of Lindsay J and matters his Honour refers to are of relevance to the present issue.
At [41]: where “probate law and the law governing administration of a deceased estate offer no clear solutions, the discretionary nature of the Court’s jurisdiction is highlighted”.
At [42]: Lindsay J says “[a]lthough dressed in the garb of legal rules, the propositions set out in Smith v Tamworth City Council are better understood as guidelines for decision-making, and management by the Court of disputes, about disposal of a dead body”.
At [43-44]: Lindsay J cites Jones v Dodd (1999) 73 SASR 328 stating that Young J’s statement of principle “is to be regarded only as a common or usual approach, not an approach which is to be rigidly applied” and is a statement of principle “of more obvious application in cases where it is likely at some stage that there will be an application for administration”.
At [46]: Lindsay J cites a statement of Nicholson J in State of South Australia v Smith (2014) 119 SASR 247; [2014] SASC 64 at [22]-[23] and [34], which as Lindsay J observed “has commended itself to several judges throughout Australia”, that:
“The authorities decided in this State [South Australia], considered to this point, suggest that no standard approach or hard and fast rule can be formulated and applied when determining a burial dispute of this nature. The proper approach, ultimately, requires a balancing of common law principles and practical considerations, as well as attention to any cultural, spiritual and religious factors that are of importance. Further, it is the unique factual context of the dispute itself which will determine the weight which particular factors should be accorded.”
“There [is] no inflexible rule that priority to apply for letters of administration [determines] who should be entitled to deal with a deceased’s remains, particularly where the deceased had no assets and it [is] unlikely that there [will] be [an] application for letters of administration. Relevant religious, cultural and spiritual concerns [can] play a role, and any views expressed by the deceased should be accorded considerable weight.
In considering the wishes of the deceased’s family, those of his or her children should carry very great weight, particularly where they have ability to visit the deceased.
*“*There has been a shift away from rights-based jurisprudence towards the management of problems in the absence of consensus within a deceased person’s community. That shift is marked by the evolution of judicial thinking in a multicultural society.”
“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.”
At [63]-[64]: citing Livesey P and Lovell JA in Marshall v Elson [2023] SASCA 1 at [59], Lindsay J emphasises that is important that “everybody remained focused on why the Court’s jurisdiction exists and how it can best be exercised” and that “the Court must be mindful of what the dignity of the deceased and the conscience of the community requires” in relation to the burial of the deceased.
The recurrent themes of the dignity of the deceased and the conscience of the community the subject of Marshall v Elson were emphasised in a headstone dispute in the English Consistory Court in Re Augustine’s Churchyard Droitwich Spa [2016] 1 WLR 3365 at [60]. There the Consistory Court sought to refocus the parties’ outlook on the dispute by commenting how unfortunate it would be “if the wording of a headstone reflected the disputes of the living rather than the character of the person being commemorated”.
These principles can now be applied. This is best done by addressing two questions. The first question concerns the power to decide what should be on the deceased’s headstone. The second question is whether reference should be made to Maddison on the headstone.
(1) The power to order changes to the headstone. Ann disputes the Court’s power to order her to change the headstone. Ann argues that as the holders of the interment right conferred under the Cemeteries and Crematoria Act*,* s 46, subject to the approval of the cemetery operator, Southern Metropolitan Cemeteries, that both Ann and Lisa are entitled to erect the memorial to the deceased of their own choosing on that site. They submit that “the rights to place the headstone and an inscription flows from” the property right conferred by their right of interment, which is now a perpetual license following the interment of the deceased: Cemeteries and Crematoria Act*,* s 46(d). They submit that their property rights allow them now to control the placement of the headstone and the content of any inscription upon it. They also submit that Southern Metropolitan Cemeteries will not recognise a request for changes to the headstone inscription where the request has not come from the holder of the interment right.
This submission highlighted that Lisa is not a party to these proceedings. After judgment was reserved, the Court raised with the legal representatives of the parties the fact that Lisa needed to be joined as a party or to agree to submit to the Court’s orders because (a) the headstone was on the plot of land over which they held the right of interment and (b) Lisa may be a party to the headstone contract. The Court indicated that it would not finalise proceedings until a decision was made about this. Through her legal representatives Lisa indicated on 24 July that she would submit to the Court’s orders without the need for her to be joined as a party. This was a reasonable course on her part, as she would otherwise have been made a defendant. Lisa acted in concert with Ann to acquire the interment rights from Southern Metropolitan Cemeteries, where they arranged for the deceased to be buried. Ann and Lisa are co-actors on behalf of the estate and are so treated henceforth in these reasons.
Ann claims commission in the sum of $10,500 for her administration of the deceased’s estate. Maddison resists the claim, contending that there is no legal basis for an award of commission.
Maddison argues that the Court’s jurisdiction to award commission is ordinarily only exercised in one of three circumstances which do not apply here:
Commission may be awarded pursuant to statutory provisions such as the Probate and Administration Act, s 86 but only upon the passing of accounts and Ann has not completed and passed accounts.
Where there is a charging clause in a will commission may be claimed and paid: Dal Pont and Mackie’s Law of Succession, LexisNexis, 2013 [13.44]. But here there is no will.
Commission may be awarded by agreement and here there is no agreement for such an award.
It can be accepted that Ann does not qualify for award of commission and has not made out the basis for such an award on any of these three bases. The Court has inherent jurisdiction “to allow to any Executor or Administrator of the Effects of any deceased person (except as herein mentioned) such Commission or Percentage out of their assets as shall be just and reasonable for their pains and trouble”: Charter Establishing Courts of Judicature in New South Wales, 13 October 1823 (the Third Charter of Justice). Parliament has also conferred similar jurisdiction on the Court under of the Probate and Administration Act*,* s 86. But whether that inherent jurisdiction applies to a situation such as the present has not been decided so far as the parties’ and the Court’s research goes.
Ann believed that Maddison was not the child of her son. She based this belief on what her son had told her when it was raised with him in or about 2014. Ann’s early administration of the estate was not undertaken for any personal gain, nor to prevent the rightful administrator taking control of the estate. Ann finally instigated DNA testing to prove or disprove Maddison’s claim. And Ann did not ultimately oppose Maddison’s right to letters of administration, nor Maddison’s beneficial entitlement to the whole of the estate, upon the confirmation of Maddison’s parentage.
Ann’s conduct is generally consistent with her being able to make a claim for commission. But in the Court’s view this is not a case where commission should be awarded, even if the jurisdiction to award commission is available.
Ann’s conduct has mostly not increased the liabilities of the estate. An exception however is the ordering of the headstone in January 2025 a month after she was aware of the DNA results and well after she was aware that Maddison was claiming administration of the estate as the highest next of kin. It would have been more reasonable for her to hold off and await the outcome of these proceedings rather than to proceed to order the headstone. It is not suggested that Ann is liable to the estate for any expenses or loss, noting that the issue of the headstone will be rectified by an order of this Court. Until December 2024 Ann otherwise administered the estate in good faith believing was entitled on intestacy under s 128 of the .
For the above reasons, the Court makes the following orders and directions:
ORDERS that the plaintiff be reimbursed from the deceased's estate in the total sum of $54,874.07 being all itemised expenses provided to the administrator by the plaintiff less the expense of the burial plot.
ORDERS that the plaintiff's costs of these proceedings fixed in the sum of $30,800 inclusive of GST be paid out of the estate.
ORDERS that the defendant's costs of these proceedings fixed in the sum of $26,867.70 inclusive of GST be paid out of the estate.
ORDERS that the plaintiff’s legal representatives inform the defendant’s legal representatives within 7 days of the date of these orders of the location of the burial plot of the deceased located within Eastern Suburbs Memorial Park.
ORDERS that the additional words 'FATHER OF MADDISON ELIZABETH LENEVE' be inserted in place of ‘Adored Cousin and Friend’ in any memorial or headstone of the deceased prepared by the plaintiff.
ORDERS that the estate pay the balance of the headstone costs of $3,165.00, together with any additional costs associated with the insertion of the additional wording in accordance with order 5.
NOTES that the Administrator consents to the plaintiff receiving the following assets of the deceased's estate:
(a) The deceased's desktop computer; and (b) The deceased's passport, birth certificate and driver's licence.
**********
Walker
Leneve [2025] NSWSC 839
(1998) 73 SASR 328
(1987) 9 NSWLR 1
(1997) 41 NSWLR 680
(2014) 119 SASR 247
(2019) 99 NSWLR 539
(1999) 73 SASR 328
Ann and Lisa’s analysis of their interment rights against Southern Metropolitan Cemeteries can be accepted as far as it goes. As against Southern Metropolitan Cemeteries, as the holders of the right of interment over the plot where the deceased is buried, they have the right to decide the inscription on the headstone memorial erected: the cemetery operator must permit that under the right of interment – Cemeteries and Crematoria Act s 46(c). Although Smith v Tamworth City Council was decided before the introduction of the Cemeteries and Crematoria Act, the new statutory regime of interment rights it creates is still generally consistent with the reasoning Smith v Tamworth City Council.
Ann and Lisa’s submissions take an unacceptable self-contradictory stance. Leaving aside the purchase of the right of interment and focusing on the headstone costs, on the one hand they seek reimbursement from the estate for the cost of the headstone – on the basis that the headstone contract was expenditure they incurred on behalf of the estate. But on the other hand, they purport to deny that the estate now has any say in formulating the inscription on the headstone which is a right derived from the same headstone contract. If the headstone contract was made on behalf of the estate, then Ann and Lisa cannot now be heard to say that the estate has no right to control the headstone inscription. The headstone contract was either made on behalf the estate or it was not.
The headstone contract was made on behalf of the estate. The deceased’s burial in this case at the interment site is only explicable by Ann and Lisa’s exercise of functions on behalf of the estate in anticipation of later obtaining a grant of administration. There can be debate in other situations where the deceased leaves a will, whether a stranger arranging a burial constitutes an act of intermeddling in the estate sufficient to make the stranger an executor de son tort: Mulray v Ogilvie (1987) 9 NSWLR 1, at 5C-F. But here, Ann and Lisa’s overall conduct in carefully arranging an appropriately dignified funeral for the deceased and making the headstone contract is consistent with their acting in those matters on behalf of the estate.
Now that administration has been granted, the estate can ratify the headstone contract which was made on its behalf before the grant of administration and can indemnify Ann and Lisa for their liabilities under the headstone contract. It is not necessary to discuss in these reasons the doctrine of relation back as it affects contracts made between death and a later grant of administration and the operation of Probate Administration Act 1898, ss 44 and 61. But one of the effects of the doctrine of relation back is that acts of an administrator before the grant is made, and done by personal representatives, are validated by the grant if they are for the benefit of the estate: Bodger v Arch (1854) 10 Exch 333; [1854] ER 472 and see Janes, Liebhold and Studdert, Wills Probate and Administration La**w in New South Wales, second edition, Thomson Reuters2020 at [PAA.44.90]. The judgment of White JA in the recent case of Deig**an v Fussell [2019] NSWCA 299 provides a comprehensive historical analysis of the operation of ss 44 and 61 and the doctrine of relation back.
The fact that that a different administrator was appointed to the one who undertook the headstone contract makes no difference. Ann and Lisa were acting as administrators and the contract they negotiated is now held by them for the benefit of the estate. They are parties to the headstone contract but hold their rights under the headstone contract on trust for the estate and must adhere to the estate’s directions in relation to estate matters. They cannot be heard to set up their legal entitlements under the headstone contract against the estate.
Ann and Lisa are entitled to a corresponding indemnity in respect of the liabilities they incurred under the headstone contract. Ann and Lisa cannot avoid this result by saying that they will bear the cost of the headstone contract themselves. After the grant of administration, the headstone contract was no longer theirs to control by their assuming liabilities under it to Southern Metropolitan Cemeteries. Ann and Lisa must be the ones to give instructions for the headstone to Southern Metropolitan Cemeteries. But the Court can determine what those instructions will be and can direct them to instruct Southern Metropolitan Cemeteries accordingly*.*
(2) Should the headstone include Maddison’s name? Ann submits that the headstone should not mention Maddison. But Maddison contests this.
In life, the deceased recognised Maddison directly as his daughter. But it can be accepted that he never clearly acknowledged to his own family that she was his daughter. His recognition of Maddison as his daughter came, first through his role as informant for her birth certificate, acknowledging his paternity in that certificate and later through his agreement to make child support payments for her welfare. The DNA testing establishes that his recognition of Maddison was justified.
Until the results of the DNA tests were published in December 2024, Ann and other members of the deceased’s family had been sceptical that he was Maddison’s father. Prior to the DNA test results their position was understandable. But that question is now resolved by the DNA test results, and they accept that Maddison is his daughter.
As a result, by operation of the rules of intestacy, Maddison will inherit the entirety of her father’s estate and was appropriately appointed as administrator of that estate on 7 February 2025, as she had highest right to that appointment.
Maddison should now be included in the inscription on the deceased’s headstone for several reasons.
First, Maddison has always had the principal interest upon administration of the estate even though it was not previously recognised. Even before the shift away from rights-based jurisprudence and the more modern trend toward the practical considerations and the need to have regard to the feelings of relatives as well as broader cultural matters, as explained in Brown v Weidig, Maddison had a very strong claim to decide what should be on the headstone.
Secondly, to refuse Maddison’s wishes, would wrongly suggest to the world that the deceased did not have a daughter. The current headstone refers only to his mother and his siblings and then to cousins and friends. The absence of any reference to Maddison on the headstone would imply that there was no father-daughter relationship in his life, which would be misleading, given the results of the DNA testing.
Thirdly, Ann’s argument that the deceased did not acknowledge Maddison as his daughter during his lifetime, is not an adequate basis to decline to record the relationship on the headstone. Even if it is accepted that the deceased did not acknowledge Maddison as his daughter to his mother and siblings, he had otherwise formally acknowledged the relationship through the Register of Births Deaths and Marriages and by consenting to orders for her maintenance. The deceased’s failure to inform Ann and his siblings about Maddison should perhaps be seen as keeping from them information which he was perhaps inhibited about sharing with them. But his dealings with them about Maddison, were only one aspect of his relationship with his daughter.
Finally, community expectations and the conscience of the community are such that if the deceased had a daughter she should be acknowledged on the headstone unless estrangement or other factors warranted otherwise. Such a recognition reflects common practice and is consistent with the dignity and importance of the father – daughter relationship, recognising in stone, what is true in fact and law. Although the deceased did not take steps to seek out contact with Maddison this was not a case of positive estrangement due to misconduct but is one where the deceased continued payment of maintenance to Maddison right up until his death and Maddison now wishes to visit his grave.
Orders will be made so that “Father of Maddison Elisabeth Leneve” should be inscribed on the headstone in place of “Adored Cousin and Friend”. This will be the default position. But there is no reason why the parties cannot discuss and agree upon other words or leave some reference on the headstone to the deceased being a cousin and a friend.
But once the DNA results became clear Ann’s conduct in then resisting the placing of Maddison’s name on the headstone has increased the costs of the estate. Probate judges during case management are constantly exhorting parties to de-escalate conflict. Maddison’s case for being placed on the headstone was a sound one, and resistance to it has been expensive on both sides.
These circumstances cloud Ann’s claim for commission. And other factors weigh against the success of such a claim. She did not complete the estate’s accounts and did not bring the estate’s administration to a conclusion. The deceased’s real estate is still yet to be sold.
But the estate should nevertheless fully reimburse Ann for her personal expenses and legal costs in relation to the ordinary estate costs and has agreed to do so. The expenses, in this case, were annexed to the Affidavit of Christopher Terry Young dated 2 April 2025, the solicitor for the Elisabeth and Nicole. This affidavit attached a schedule of expenses received from the plaintiff’s solicitors totalling $70,873.58. The Court will make an agreed order for Ann to be reimbursed $54,874.07 from the Estate. This includes Ann’s prior legal fees as listed in the schedule.
Maddison alone is now entitled to the remainder of the estate “after payment of all such funeral and administration expenses, debts and other liabilities as are properly payable out of the estate”: Succession Act 2006*,* s 103. As she is a minor, suitable arrangements should be made for the estate funds to be held on trust for her. Should any difficulty arise in implementing or enforcing these orders, Maddison can take advantage of the liberty to apply which may including formally adding Lisa as a defendant.