Executor, Administrator & Burial Disputes Pt 2

Yesterday we posted a case about a Burial dispute between the siblings and de facto partner of Oliver Wise a man of Aboriginal descent. In a similar scenario a man of Aboriginal descent died near Marla in South Australia.

The father of the deceased wished to have his son buried in Oodnadatta. A woman with whom the deceased had lived in a de facto relationship for a period of about five years, that came to an end about ten years ago; lives with two children of that relationship in Port Augusta seeks to have the deceased buried in Port Augusta.

The dispute as to burial of the deceased went to Court.

The deceased lived for the greater part of his life either at or near Oodnadatta. It is also clear that he has spent some of his life in Port Augusta. The deceased also visited Port Augusta from time to time for the purpose of seeing his two children.

The deceased’s father sought to have his son buried in the “family row” in a cemetery at Oodnadatta. Arguing it is Aboriginal custom that the head of the family is the person empowered to make decisions in respect of family issues and land issues. He adds:

“It is very important in our culture that the deceased is buried in the area so that his spirit can come back in animal form. The area that my late son comes from is the Oodnadatta area. It is very important in our culture that my late son be buried in Oodnadatta.”

The deceased’s sister Mary says that, about two months before he died, her brother had said to her that he would be buried in Oodnadatta. This evidence is disputed.

The Court noted the evidence that the grandparents and some cousins of the deceased are buried in Port Augusta.

There is a clear conflict in the evidence as to the wishes of the deceased. As a general rule, it is the executors or the administrators of the estate of the deceased who have the right of property in the body.

However, as the deceased died leaving no will, has no assets, and it is unlikely there will be any application for a grant of letters of administration, there is no executor and no administrator of his estate. In the absence of an executor or administrator, it appears that other persons have a duty to bury the body of a deceased person.

The mother of the deceased’s children hadn’t been  his de facto spouse for a period of about 10 years prior to his death. She could not, therefore, have applied for letters of administration. According to common law in the absence of a surviving husband or wife, the right to burial vests in the next of kin, that is to say, children of full age, parents, brothers and sisters. In this case the children are aged 10 and 11 years respectively.

Therefore, the next in the degrees of kinship at common law, as distinct from kinship in Aboriginal customary law, is the father of the deceased. He, therefore, has the right to the body for the purpose of conducting the burial.

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