Burial of Intestate Minor

In March 2002 Ross Cramley (“Ross”) died in a motor vehicle accident in Western Australia aged 17. As Ross was under 18 he did not leave a will. He was unmarried, did not live in a de facto relationship, and had no children.

His parents Mary and Jeffrey were divorced and each sought orders that they make the funeral arrangements  and that Ross be buried in a cemetery in the mothers case in Perth, and the father’s case, in Sydney.

Ross’s parents separated in 1987, with his father granted custody, and his mother being granted reasonable access. Until 1998 Ross lived with Jeffrey and his fraternal Grandmother in Sydney. At the age of 14 he returned to Perth to live with Mary. In about April 2000, Ross moved out of Mary’s home and started to live in the home of one of his school friends.

In December 2000, Ross returned to Sydney to live with Jeffrey moving regularly between Sydney and Perth. In the last 16 months of his life Ross spent about 9 months in Perth and 7 months in Sydney. When he was in Sydney, he lived with his father, where he kept his belongings. When he was in Perth, Ross stayed in the home of his school friends where he also kept his belongings. At this time his father financially supported Ross.

After you die your executors have a right to the custody and possession of the body (although they have no property in it) until it is properly buried.

Courts have confirmed that the following sequence can be used to decide who has carriage of the body and burial rights:

 “Where no executor is named the person with the highest rank (right) to take out administration will have the same position (privilege) as the executor…

 Where two or more persons have an equally ranking privilege, the practicalities of burial without unreasonable delay will decide the issue.”

As Ross left property in both Western Australia, and New South Wales, both of the parties have a right to apply for, and would be likely to be granted, letters of administration.

Mary submitted that says that she was not well off financially and would not be able to meet the cost of attending a funeral in Sydney or of making trips to Sydney to visit the grave. Jeffrey said that he would be prepared to pay the airfare for Mary and her mother to attend a funeral in Sydney, and pay an airfare for Mary to visit Ross’ grave each year.

Both parents expressed the wish to visit Ross’ grave on a regular basis in the future, and both have sizeable family living in both cities who would wish to attend the funeral.

The Court decided that looking at the issue in a

“practical way paying due regard to the need to have a dead body disposed of without unreasonable delay but with proper respect and decency”

Ross died in Western Australia,  Jeffrey was presently in Perth for the Court hearing and has family here; is financially better off  therefore is much better placed than Mary to travel to visit Ross’s grave. Based on those factors, slight as they were, the Court decided in favour of a funeral in Western Australia.