Intestacy & Indigenous Burial Disputes

An Aboriginal man “A” died intestate on 16 May 2018 at the Townsville General Hospital. A was survived by nine children and did not have a spouse at the time of his death his estate was valued at approximately $10,000.00.

If the deceased executed a will, the named executor has the responsibility of arranging the funeral and burial of the deceased. If the deceased dies intestate, the common law position is that the person entitled to take letters of administration in priority is responsible for the arrangement of the funeral and burial.

A’s son Trevor applied to the Queensland Supreme Court for orders pursuant to s 6 of the Succession Act 1981 (Qld) that the body of his father be released to him for the purposes of funeral and subsequent burial at Charters Towers, Queensland the body was being held at the Townsville Hospital Morgue.

Trevor also seeks an order entitling him to withdraw a sum of $8,000.00 from A’s bank account to pay the funeral expenses.

Some of the Trevor’s siblings oppose the application on the basis of cultural reasons. They wish to arrange the funeral and have the burial “in country” at Townsville.

So far as they are relevant to this case the relevant principles are:

  1. “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.
  2. 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.
  3. 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.
  4. 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
  5. The right of the surviving spouse or de facto spouse will be preferred to the right of children.
  6. Where two or more persons have an equally ranking privilege, the practicalities of burial without unreasonable delay will decide the issue.”

Trevor submitted that although his father was an elder of the Wulgurukaba People native to the Magnetic Island region and was involved in a native title claim regarding Magnetic Island, he did not seem interested in cultural issues regarding burial at Magnetic Island. A spent significant time in Charters Towers, where he both worked and lived, and had strong friendships with a number of people from his time spent working there. Seven of A’s children (including Trevor) were born in Charters towers and his daughter Gail still lives there; and one of his sons is buried in the Charters Towers Cemetery.

Trevor says that the responsibility of arranging the funeral and burial of an Aboriginal man is ‘men’s business’, that women are not allowed to view the body, but the whole family may attend the funeral. This evidence was based on his experience in the Northern Territory and Western Australia as opposed to Queensland.

Further A’s historical connection with Magnetic Island and the connection the Wulgurukaba People have with Townsville lead his daughter Christine and those that agree with her to favour a funeral and burial at Townsville, “in country”.

The Court applied the following considerations as to who can make the decision regarding burial:

  • Who might be entitled to obtain letters of administration in the event that such an application were to be made;
  • The Aboriginal cultural matters and concerns raised in evidence
  • The deceased’s own wishes; and
  • The wishes and sensitivities of the living close relatives.

While taking into account indigenous cultural and spiritual factors of importance the court believed that the funeral and burial would need to be held in a timely way, and to consider the costs and logistical difficulties attendant upon any competing ceremonies and burials.

The historical and cultural connection A had with Townsville and Magnetic Island as a Wulgurukaba man suggests that the holding of a funeral service in Townsville would be consistent with the acknowledgment of the cultural connection the deceased had “in country” and the legitimate concerns that a majority of his children have that a funeral or memorial service be conducted in Townsville.

The Court ordered that pursuant to section 6 of the Succession Act 1981 (Qld) the funeral service should be conducted consistent with the practices of Wulgurukaba men that the deceased body be present at the funeral service and that it not be buried or interred prior to the holding of that service; andthat Trevor is entitled to withdraw the sum of $8000 for the purpose suggests that there is sufficient funds in A’s bank account to pay for a funeral service in Townsville and a subsequent interment and burial in Charters Towers.

If A had drafted a Will naming Trevor as executor this series of events would not have been necessary. An executor has the right of burial; and is not legally bound to consult with other stakeholders as to where the deceased is buried.




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