Burial Or Cremation Law Disputes

It’s not unusual for there to sometimes be disputes in relation to how a deceased person’s body should be dealt with and a recent Supreme Court case highlighted some of the issues that can arise upon a person’s death.

WHAT DOES THE LAW SAY?

In Queensland, there is no statutory regime that specifically sets out how a person’s body is to be dealt with following their death.

The common law provides that the Executor of a deceased person’s Will has the duty to dispose of the body of the deceased and therefore the right to possession of the deceased’s body for the purpose of its disposal. 

The only statutory limitation in Queensland is found in Section 7 of the Cremations Act 2003 which provides that if a deceased person has left signed instructions for his or her human remains to be cremated then the deceased’s Executor must ensure that the deceased person is cremated in accordance with those signed instructions.

Section 8 of the Cremations Act 2003 also provides that no Coroner or Doctor is to issue permission to cremate if they are made aware that any spouse, adult child or parent of the deceased person objects to the person being cremated.

THE CASE STUDY

In the recent case of Laing v Laing [2014] QSC 1994 there effectively was a dispute between two parties, the first party being the adult children of the deceased and the other party being the second wife of the deceased whom he had only been married to for a short period of time.

The deceased, Mr Laing was at the time of his death 84 years of age. He was married to his first wife for approximately 42 years and had three children with her.

The deceased lived in Canberra with his wife and children from 1972 until he moved away in 2012.

His wife died in 2002 and was buried in Canberra and at the time Mr Laing selected a double plot at the cemetery so that he could be buried next to his wife when he died. 

From about 2006 Mr Laing’s personality appeared to change.

He began to make large cash gifts to people he had only recently met, in particular to young female prostitutes.

He gave away many household assets and large sums of money including all of his savings; the proceeds of his inheritance from his wife, his car and the cash from his life insurance policy.

He made many proposals of marriage to much younger women including his niece, the prostitutes that he had met and a young immigrant to enable her to obtain a visa to remain in Australia. 

In 2010 Mr Laing’s three adult children applied to the ACT Civil and Administrative Tribunal for the appointment of a manager to make decisions about Mr Laing’s property and financial matters and ultimately an Order was made that the Public Trustee for ACT be appointed as the manager of Mr Laing’s property. 

Mr Laing married his second wife on 28 September 2011 after having only known her for a short period of time (at the most 1 or 2 months).  She divorced from her husband on 21 September 2011 and married Mr Laing one week later. 

Mr Laing met her as she was a sex worker at the time. Mr Laing’s adult children wanted Mr Laing to be buried at the plot in Canberra while his second wife opposed that happening.

THE RESULT

Ultimately the Court decided in favour of ordering that Mr Laing’s body be released to his son for the purpose of a funeral and subsequent burial at the Canberra Cemetery.

The Court found that there were a number of factors that supported that Order which included that he had lived almost all of his adult life in Canberra, he was a well-regarded solicitor in the Attorney General’s Department in Canberra, he had raised his family there, he had a wife there of almost 40 years and when she died she was buried in a cemetery plot which was purchased by him on the basis that there were two plots side by side for him to be buried beside her and that at the time there was no question that he was able to make a rational and considered decision as to how his body would be interned. 

On the other hand, the decision made by the ACT Civil and Administrative Tribunal indicated that Mr Laing was unable to make properly considered judgments later in his life, his residence in Queensland was very short in duration and he had no family or friends in Queensland.

Contact Us for Help with your Will

In situations like these, it is best to discuss your specific wishes regarding burial or cremation with your family.

An update to your legal Will may be necessary to ensure that your wishes are carried out.

Should you wish to discuss your options, please do not hesitate to contact our solicitors on (07) 5575 2844.