In the last post the Court held that once a child has been adopted it becomes the child of the adopting parents and ceases to be the child of any other person; therefore the deceased’s adoptive parents, have the highest right to take out administration of his estate, including the right to arrange for his burial.
The licence to bury a deceased’s body in a specified plot in the cemetery becomes an irrevocable licence to have the body remain undisturbed in that plot and the right to care for the grave once it has been interred.
Importantly the legal right of burial is not altered by the fact that someone other than the holder of that right pays the funeral director. If the licence is to be transferred, its assignment required some writing so as to comply with the Conveyancing Act
The Court decided that the Right of Burial is held for the Mr and Mrs Konz as David’s adoptive parents. David had died intestate and no administrator of the estate had been appointed. Due to the nature of adoption there is no contest between the adopting parents and the biological parents. It would seem that the only other claimants, Leanne, who may have been David’s de facto wife and their infant daughter Teliah were quite content to leave matters to Mr and Mrs Konz.
Essentially the Court held that the following apply:
- If a person has named an executor in his or her will and that person is ready, willing and able to arrange for the burial of the deceased’s body, the person named as executor has the right to do so.
- Apart from appointing an executor who will have the right stated in proposition 1, and apart from any applicable statute dealing with the disposal of parts of a body, a person has no right to dictate what will happen to his or her body.
- A person with the privilege of choosing how to bury a body is expected to consult with other stakeholders, but is not legally bound to do so.
- Where no executor is named, the person with the highest right to take out administration will have the same privilege as the executor in proposition 1.
- The right of the surviving spouse or de facto spouse will be preferred to the right of children.
- Where two or more persons have an equally ranking privilege, the practicalities of burial without unreasonable delay will decide the issue.
- If a person dies in a situation where there is no competent person willing to bury the body, the householder where the death occurs has the responsibility for burying the body.
- Cremation is nowadays equivalent to burial.
- A person who expends funds in burying a body has a restitutionary action to recover his or her reasonable costs and expenses.
- A Right of Burial is not an easement, but a licence: it is irrevocable once a body has been buried in the licensed plot.
- The cemetery authority is able to make reasonable by-laws as to the maintenance of the appearance of the cemetery.
- Subject to such by-laws, the holder of the Right of Burial has the power to decide on the appearance of the grave and headstone.
- The reasonable cost of a reasonable headstone is recoverable from the deceased’s estate.
- The holder of the Right of Burial cannot use his or her right in such a way as to exclude friends and relatives of the deceased expressing their affection for the deceased in a reasonable and appropriate manner such as by placing flowers on the grave.
- After the death of the executor or administrator, the right to control the grave passes to the legal personal representative of the original deceased, not the legal personal representative of the holder of the Right of Burial.
In not making a Will David’s loved ones were placed in an even more stressful position than they would have been had he set out his testamentary wishes.