Section 4 of the Administration Act 1903 (WA) upholds the jurisdiction of the Supreme Court in deciding who should take charge of a funeral and how that person should manage the deceased’s body. Common law recognises the existence of duties and rights relating to the burial of a corpse. The executor of a deceased person’s will must arrange their funeral and a corresponding right to keep the body for that purpose. However, the situation becomes more complicated when the person dies without a will or naming an executor.
The Court will usually order that a funeral be arranged by either the executor of the deceased estate or the individual who appears to have the most likelihood of receiving a grant of administration of the intestate estate (who is generally the person with the most significant interest in the estate). Nevertheless, this is only a customary approach. The approach and weight of different factors depend on the case’s unique circumstances.
The Court does not have to make a definitive decision on who is entitled to the intestate estate or administration of the estate when determining the person who gets the deceased’s body. In many situations, such as the one at hand, the Court is not in a position to make a reasonable and proper decision regarding such an interest or entitlement. The Court must resolve disagreements concerning the release of a deceased’s body as soon as possible after their death.
Expediency is critical in disputes of this nature, and delaying the funeral for numerous months after death to allow for the resolution of questions of interest and entitlement would be an insult to the dignity of the deceased and the emotional well-being of those close to them. The need for a speedy resolution of the question of the deceased’s funeral arrangements arises when the parties to the dispute are grieving over the loss of a loved one.
Background
In Pryor v Huata [2024] WASC 13, a 19-year-old man who did not leave a will was referred to as ‘Boy’ during the legal proceedings (the deceased).
The deceased’s father, Daniel Pryor (the applicant), was a member of the Noongar community, while his mother (the first respondent) was of Māori descent. Both parents had their customs and traditions for burial, which involved burying the deceased on their ancestral land. While the applicant wished to bury his son in Midland, Western Australia, the first respondent hoped to bury the deceased in Raupunga, Hawkes Bay, New Zealand. Unfortunately, they could not reach an agreement on who should have the right to arrange the deceased’s funeral and decide his burial.
The Deceased lived in Perth and had never been to New Zealand. All of his siblings, his father, his extended family, his mother, and his mother’s parents also lived in Perth. According to a senior Noongar elder, traditional Noongar custom dictates that when a child is born on country, they belong to that country and must be buried there. Until burial on country, the deceased’s soul could not find peace.
The first respondent’s evidence is that the deceased held an affinity for both of his cultures but did not display or profess any solid attachment to either. Her evidence is that the deceased was principally attached to the first respondent, his siblings and his maternal grandparents, who raised him. (at [54]).
The first respondent had sole responsibility for making the decisions about her children’s lives.
The matter
The Court observed that the applicant may be unable to attend the burial service if it occurs in New Zealand. The cost of travel to New Zealand is likely to impact the attendance of the deceased’s friends and paternal family at the burial service. The applicant proposed a funeral service in Perth before repatriating the deceased to New Zealand, which would inevitably cause some delay. Additionally, there would be a delay of at least 5 – 7 business days in repatriating the deceased’s body to New Zealand.
The Court accepted that whatever decision it makes will inevitably cause significant distress to the losing party. There was a dispute on the evidence about the nature and extent of both the applicant’s involvement with his son, as well as the extent to which the deceased identified as Noongar or Māori. It is simply not possible on the evidence before the Court to resolve these disputes, nor in the Court’s view, is it necessary (at [82]).
Even if established, the first respondent did not persuade the Court that the deceased’s relationship with his mother should take ‘precedence over all other factors’ (at [86]).
However, on balance, after reviewing all of the evidence and considering the arguments made by both parties, the Court should not prioritise the deceased’s relationship with the first respondent over other factors. As a result, the deceased’s funeral should be in Perth for the following reasons.
Firstly, Perth is where the deceased was born and raised for the entirety of his short life, and arrangements have already been made for his burial there.
Secondly, since the deceased passed away in Perth, it is practical to have his funeral and burial there. While it is true that it is not uncommon to fly bodies to other locations for burial, this generally only occurs when all parties agree.
Thirdly, having the burial in Perth will allow all immediate family members currently residing in Perth to attend both the funeral and the burial.
Fourthly, although the first respondent had been the deceased’s primary caregiver since birth and his next of kin, this alone is not a sufficient reason not to have him buried in Perth or to have his body transported to New Zealand for burial.
The decision
Considering these factors, the Court believed that the balance of factors favours having the funeral in Perth. However, the first respondent should organise the deceased’s funeral. She has been the deceased’s primary caregiver since birth, made all significant decisions regarding his life, and was identified by the deceased as his next of kin in medical records.
As to the funeral, the Court decided that the mother should arrange the deceased’s funeral as she ‘had primary care and responsibility for [Boy] since birth’ and ‘made all major decisions in respect of his life’ (at [92]).
After reviewing all the relevant evidence, the first respondent convinced the Court that the first defendant should be responsible for organising the funeral. The first defendant has been primarily responsible for caring for the deceased since his birth and has made all significant decisions regarding his life. Additionally, the deceased identified the defendant as his next of kin in his medical records, which is a crucial factor to consider.
Based on the Court’s understanding, they made the following orders:
The State Coroner (the second respondent)is to release the body of the deceased to Sheridan Funerals or as otherwise directed by the first defendant.
The first respondent should have the responsibility and authority to manage and oversee the funeral and burial arrangements, subject to consultation with the plaintiff regarding the arrangement for such burial to occur in Midland, Western Australia.