In research undertaken in conjunction with various stakeholders including the NSW Public Trustee it has been found that the Aboriginal community commonly has disputes regarding the burial of relatives. These disputes are very disturbing for those involved and lead to ill feeling among families and long standing ruptures in community relationships. This problem tends to arise where the deceased has not made a Will and dies intestate.
Importantly the advantage of making a Will and appointing an executor is that the executor has the right of disposal of the body. It should be noted that apart from a direction not to cremate a body, a direction in a Will to deal with a body a certain way is not binding; however the Will maker can appoint an executor who is willing to carry out their wishes in relation to funeral rights & burial.
If the person dies intestate it is up to the court to decide who has the duty to arrange the burial. If the intestate estate is very small there might not be an application for letters of administration and it may require expensive Court action to determine who has the right to decide how to dispose of the body.
It has been long held by the common law that there is no property in a dead body. The leading Australian case concerned the ownership of the preserved body of a two-headed baby. The High Court of Australia did not definitively answer whether there could be property in a dead body however this particular baby could be regarded as property because it had been preserved with care and skill.
Therefore if a body is embalmed with care and skill it belongs to the embalmer, or to the person who paid the embalmer. This reasoning has been applied to cases involving the theft of preserved body parts from the Royal College of Surgeons where the Court found they were the property of the College.
In 2007 the Tasmanian Aboriginal Centre brought an application for letters of administration to the Supreme Court of Tasmania in relation to 17 Tasmanian Aboriginals who died more than 150 years ago and whose remains were held in the Natural History Museum in the United Kingdom. This case was unusual for several reasons including that there was no evidence that any of the 17 deceased persons held any property, or that there is any estate remaining and the personal representatives of the 17 deceased persons are unknown.
The application was brought because the Natural History Museum made it clear that it proposed to conduct DNA investigations on the remains, take tissue samples and otherwise investigate the remains before they were returned to Tasmania for burial.
The Court granted letters of Administration so that the remains could have “legal protection from unnecessary disturbance and violation” and be returned to Tasmania for burial in accordance with Aboriginal customary rights.