Frank Swann died in hospital following a long illness. His remains were cremated. His son Graham made the funeral arrangements. Frank was born in Birmingham and immigrated with his wife to Australia in 1967. In Birmingham he had lived near Pipe-Payes Park, and often visited the park with his wife and children; it was his wish that his ashes be taken to England to be scattered over Pipe-Payes Park.
His widow, a daughter Vanessa, Graham, and another son in Birmingham survived Frank; Apart from Graham it was the desire of the family that Frank’s wishes as to the disposal of his ashes should be complied with.
Graham was told by an employee of the crematorium that often where a family had come from England it was a usual practice for half the ashes to remain in Australia and the other half to go back to England. He accepted this idea and was under the belief that his mother agreed to it.
A few weeks after Frank’s death, Graham signed a contract with the crematorium paying $590.00 for Frank’s ashes to be halved, half were to be taken to England and half were to be placed in the rose garden space with a plaque.
His mother made plans to leave for England and take with her the half of the ashes now in the rose garden as well as the half, which she has already collected from the Crematorium to comply with Frank’s wishes. Graham refused to authorise the release of the ashes from the Crematorium for this purpose.
The executor of Frank’s estate commenced proceedings seeking the Crematorium to release the half of the ashes that it held and deliver them to him. If successful the executor would hand them to Frank’s widow so that she may comply with his wishes; Graham opposes this and the Crematorium will comply with any order of the Court.
As we have posted before there is no property in a dead body, however after death the custody and possession of the body belongs to the executors until it is buried. . It may be that after burial a corpse forms part of the land in which it is buried and the right of possession to it goes with the land. In such a case the right of the executor would be lost.
The Court concluded that where cremation of the body has occurred an executor has a right to possession of the ashes of the deceased particularly where the executor intends to act in accordance with the wishes of the deceased.
In this case the ashes have been retained by the crematorium based on a contract entered into between them and Graham. The Court had to decide whether the executors right to decide how the ashes shall be disposed of is secondary to the contractual right.
There is an inconsistency between Graham and his mother as to the arrangement entered into with the Crematorium. The Court accepted the widow’s evidence that she was not consulted beforehand and that Graham presented her with the arrangements made as a fait accompli and she did not protest. Importantly the Court took into account that Graham had a strained relationship with Frank and had not seen him for two years before his death, and that all the other members of the family wish the ashes to be taken by their mother to England.
The Court found that the executor was entitled to the ashes and as Graham resisted the wishes of the other members of his family to have the ashes taken back to England by the widow he should pay the costs of the proceeding, including the Crematorium’s costs.