The applicant sought orders:
- that the body of his father be released to him for the purpose of a funeral and subsequent burial at Charters Towers, Queensland, pursuant to s 6 of the Succession Act 1981 (Qld) (the Act); and
- that the applicant be allowed to withdraw $8,000 from the deceased’s bank account for the payment of funeral expenses.
The deceased died intestate and had nine children. The application was opposed by some of the applicant’s siblings who sought to arrange the funeral and burial in Townsville.
Section 6(1) of the Act provides:
“Subject to this Act, the court has jurisdiction in every respect as may be convenient to grant and revoke probate of the will or letters of administration of the estate of any deceased person, to hear and determine all testamentary matters and to hear and determine all matters relating to the estate and the administration of the estate of any deceased person; and has jurisdiction to make all such declarations and to make and enforce all such orders as may be necessary or convenient in every such respect.”
His Honour continued, referring to Darcy v Duckett  NSWSC 1756 where Campbell J set out the relevant common law principles at -:
“The applicable common law principles in this area of discourse were stated by Young J (as his Honour then was) in Smith v Tamworth City Council  NSWSC 197; (1997) 41 NSWLR 680. So far as they are relevant to this case, his Honour summarised the relevant principles in the following way (at 693-4):
- “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.
- 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.
- 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.
- 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.
- The right of the surviving spouse or de facto spouse will be preferred to the right of children.
- Where two or more persons have an equally ranking privilege, the practicalities of burial without unreasonable delay will decide the issue.”
It has, however, been recognised that these principles are not fixed rules which deal exhaustively with the subject. In South Australia v Smith, Nicholson J, after a review of the authorities, particularly in South Australia, concluded (at 255 ):
… 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.
Determining the place of burial of the deceased and the location of the funeral, North J stated:
 … A burial at Charters Towers is not demonstrated to be expensive nor logistically inconvenient. It is consistent with the wishes of the applicant and his sisters Gail and Yasmin. The deceased had a connection with Charters Towers for many years and one of his sons is buried there. In the circumstances the factual context of the dispute concerning burial suggests that the desires of the deceased, Trevor, Gail and Yasmin should be given affect to.
 Slightly different considerations apply concerning the disputed issue as to whether there should be a funeral service in Townsville. The historical and cultural connection the deceased had with Townsville and Magnetic Island as a Wulgurukaba man suggests that the holding of a funeral service in Townsville would be consistent with the acknowledgment of the cultural connection the deceased had “in country” and the legitimate concerns that a majority of the children have …. The evidence suggests that there is sufficient funds in the deceased bank account to pay for a funeral service in Townsville and a subsequent interment and burial in Charters Towers. …
In conclusion, his Honour ordered that the body of the applicant’s father be released for a funeral at Townsville and subsequent burial at Charters Towers. The applicant was entitled to withdraw $8,000 from the deceased’s bank account for payment of funeral expenses.
There was no order as to costs.
David Cormack – Brisbane Barrister & Mediator