Sibling Co-Executors, Family Squabbles & Indemnity Costs

Giuseppina Condo died on 16 May 2020 survived by her five adult children. Although the relationship between the children was strained Giuseppina named two of her children, Maria (the plaintiff) and John (the defendant) executors of her estate in a Will dated 10 November 2016.

Around the same time, as the WIll was made Giuseppina appointed the plaintiff as her attorney, (including her medical attorney) with the defendant appointed as her alternate attorney. However, the defendant claimed he was only advised of this in 2019 further exacerbating the tensions between the plaintiff, the defendant and their siblings.

The defendant and the other children were unhappy with the plaintiff’s lack of transparency and communication regarding their mother’s care needs and medical condition. As a result, in January 2020, the defendant made an application to the Victorian Civil and Administrative Tribunal that had not been heard at the time of Giuseppina’s death

The Funeral

In Australia, a person’s wishes with respect to the disposal of their body are not legally binding. Provided it is not unlawful,wholly unreasonable or exercised in a way that prevents family and friends from reasonably and appropriately expressing affection for the deceased, the executor may dispose of the body in any manner they wish.

The defendant submitted that Giuseppina was a devout Catholic who wished for a traditional Italian service. However, he and two of his siblings were excluded from discussions at the aged care facility concerning the funeral arrangements which resulted in a substantial dispute between the siblings regarding Giuseppina’s funeral.

Notwithstanding this, on 23 June 2020, the plaintiff’s solicitors proposed that a joint funeral service take place. On 14 July 2020, the defendant’s solicitors extended this offer to include the dressing of the deceased as well as the selection of the casket and flower arrangements.

However, the plaintiff appears to have subsequently objected to that proposal; as a consequence, the deceased remained uninterred for more than two months after her death. The plaintiff commenced the proceeding.

Plaintiff’s application

In July 2020, the plaintiff sought orders giving her the right and responsibility to dispose of the body of the deceased in her sole discretion. In addition, the plaintiff asked the court to order that:

she directs how the funeral and burial be conducted and provide necessary instructions, to the exclusion of the defendant;

the funeral and burial service of the body be conducted as soon as practicable; and

the defendant pays the plaintiff’s costs on an indemnity basis.

The defendant sought orders that the dressing and viewing of the deceased be conducted by the plaintiffs funeral director and the funeral and burial be conducted by a funeral director chosen by the defendant.

Consideration

The court held that although the parties are the executors of a deceased estate, it is simply a dispute between siblings over the funeral and burial arrangements for the deceased. The plaintiff’s refusal to consult with her co-executor and at least two of her siblings on the funeral and burial arrangements and her refusal to accept what were fair compromises was unreasonable. 

The court found the defendant was amenable to the idea of a joint funeral and his offers remained open when the plaintiff’s solicitors asked the defendant’s solicitors to confirm whether he had instructions to accept service.

The Court ordered indemnity costs against the plaintiff as a result of the plaintiff’s unreasonable conduct in commencing such adversarial litigation when reasonable offers remained on the table, putting the estate at risk for costs of the proceeding.

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