Intestacy and Burial Rights

Helen Vosnakis died in July 2012 she was suffering from cancer at the time, but her death was unexpected. Helen was intestate at the date of her death, her husband Joseph was granted letters of administration in August 2013.

One of the functions of a Will is to name an Executor who is acknowledged to have the right to possession of the body for the purposes of burial. Helen didn’t leave a Will therefore in the days following Helen’s death Joseph had a conversation with Helen’s Mother Aristea concerning the burial arrangements. Aristea told Joseph that she had two plots at Botany Cemetery; her husband had been cremated and she didn’t need both of them. She said:

“I want you to have one. I won’t take no for an answer. You can bury Helen in it and then you can go with her.”

Joseph accepted the offer.

The next day, a representative of the Funeral director attended Aristea’s home. She confirmed she had two plots at Botany Cemetery:

“I will give Joe…one. Joe and Helen can go in that one together.”

Joseph said that he would not have buried his wife in the burial plot, had it not been for the conversations with Aristea in which she told him that she would transfer the burial plot to him, so that he could make arrangements to be buried in the same burial plot as his wife.

However it was not that straightforward as the right to nominate the second person to be buried in the adjoining burial plot remained in the name of Aristea’s mother, and was therefore an asset of her estate. Aristea was named as executor of the Will but had not obtained Probate; she could only nominate the second person to be buried in the adjoining burial plot, after probate was granted.

Joseph had his solicitor prepare documents for Aristea to obtain a grant of probate of her mother’s estate, and transfer the burial licence. It would seem that by July 2013 Aristea had changed her mind in relation to the offer to transfer the burial plot; and ceased to have direct communication with Joseph.

Joseph offered to pay Aristea $30,000 in return for her transferring the ownership of the grave. When he received no answer he commenced litigation.

The Court rejected Joseph’s argument that there was a contractual relationsip between Joseph and Aristea, as there was no intention to enter into a legally binding contract. However, it held that Aristea had induced Joseph to assume that the licence would be transferred to him, and he acted in reliance on this assumption to his detriment, therefore she could not refuse to transfer the burial plot to him.




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