I paid for it – so it’s mine! Not Necessarily pt 1

David Allen Konz, died suddenly in March 1996. He was in a de facto relationship with Leanne and had a daughter, Teliah, born in late 1995.

David was raised by an adoptive family that included his sister Rachel, who regarded him as her brother. David was buried in the lawn cemetery in Tamworth in March 1997.

The Smith’s, David’s biological parents, commenced proceedings against the Tamworth council who operated the cemetery to transfer the title of the grave from the deceased’s adoptive parent’s to them, and for a declaration that they were exclusively entitled to control of the plot. Alternatively they sought an order that the David’s adoptive parents, who had erected a headstone on the grave, permit them to erect a headstone of their own choosing.

The Smiths had paid the funeral director’s fees, which included the council’s charge for the “gravesite purchase”, although David’s adoptive mother had engaged the funeral director.

Shortly after David’s death, his adoptive mother engaged a funeral director to make arrangements for David’s funeral and to bury his body. The body was released to the funeral director by the coroner, who then approached the Tamworth City Council for permission to bury the body.

David’s adoptive parents together with Leanne, erected a headstone on the grave

The funeral director sent a bill for its services to David’s biological parents Don & Maree Smith. The bill included a charge for the “casket selected” and for “grave site purchase”. The plaintiffs paid this account in March 1996.

The funeral director telephoned David’s adoptive mother and said,

“I have received a cheque from the  Smiths . I just wanted to give you the option of paying the account for if the  Smiths  pay the account that gives them the right to do with David’s grave the way they wish.”

Mrs Konz said that she replied,

“You’re joking. I’ll have to speak to my husband and I’ll ring you back.”

She telephoned the funeral director shortly thereafter and said “Let them pay it then”.

The funeral director banked the cheque and sent the receipt and death certificate to the Smiths.

This dispute arose because David had died without a Will. Where a person has named an executor, that named executor has the primary privilege of burying the deceased’s body. Where there is no executor named, and the deceased leaves an estate, the person entitled to administration is usually the person who is responsible for the burial of the body and for the payment of the funeral expenses.

As the burial usually takes place before there is a grant of administration, the person who is most likely to get the grant of administration (usually the person with the largest interest in the estate) will normally be the person who is the one expected to bury the body.

Where the deceased does not leave any estate, then it would seem that the duty is still on the person under whose roof the deceased dies to arrange the burial. Where a person has a husband or wife or parents or children, then they have a duty to arrange for the burial.

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