Executor, Administrator, and Burial rights.

Oliver Wise died in February 1997 aged 36 in Melbourne. He was of Australian aboriginal descent. His parents and some of his siblings are deceased; their bodies are buried at the Swan Hill Cemetery. A dispute arose regarding the burial of the body.

Members of Oliver’s family wanted him to be buried at the Swan Hill Cemetery. His de facto partner wanted him to be buried in Melbourne, as it would be onerous to travel to Swan Hill to visit his grave.

One issue was that Oliver’s family has is that the partner “does not share the aboriginality of my deceased brother’s child,” and that if he was buried in the Melbourne area it “would deny my late brother and his child the continuity of spirit which is affected (sic) by an appropriate burial at the place of his and his child’s birth at Swan Hill.”

The dispute went to Court; Oliver’s de facto claimed that their relationship continued for over a decade, this was disputed. His partner says that it was Oliver’s wish to be buried in Melbourne. She produced a handwritten Will signed only by Oliver. This document did not name an executor however it contained the following passage:

“I also want to be buried at Altona Cemetery where my wife and children can be close to me.”

This too was disputed.

Where a person has died intestate, Court’s try to identify as best as is possible the person who is the potential administrator, and to treat that person in the same way as if he or she had been appointed executor; that is, so that the decision of that person as to the place of burial prevails.

It requires that the court resolve the argument in a practical way paying due regard to the need to have a dead body disposed of without unreasonable delay, but with “all proper respect and decency.”

It was argued by Oliver’s de facto partner that she was the person meeting the description of a potential administrator. Either as Oliver’s de facto or alternatively, as the custodial parent of the Oliver’s child, Toni.

The Court decided that due to the Toni’s claim upon Oliver’s estate, his de facto is the person who should assume the duty of making burial arrangements in respect of the body of the deceased.

The executor of a deceased has a right to the custody and possession of the body until it is properly buried.

In this case, had Oliver made a will and appointed his partner as his executor, it would be her decision as to the place of burial. Similarly, had he appointed one of his siblings as executor, their decision as to the place of burial would be unimpeachable.

Although Oliver made a direction in the informal Will an executor is not obliged to act in accordance with such a direction.

The Court emphasized that this decision was not a rejection of the aboriginal cultural values asserted they were simply beside the point.

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