Disposal of a Body: Burial v Cremation

In Phillips v The State Coroner & Anor [2024] SASC 134, the applicant is the mother of the deceased Scot Adam Phillips, whose body is currently in the coroner’s custody. The second respondent is the deceased’s twin sister. The matter concerns the funeral arrangements for the deceased and whether the deceased should be buried or cremated. It is necessary to examine the Burial and Cremation Act 2013 (SA) to resolve this issue. Additionally, it involves considering the Court’s inherent jurisdiction and how that jurisdiction interacts with the Act.

A significant body of law pertains to resolving this dispute. In Williams v Williams (1882) 20 Ch D 659 where Kay J stated:

“a man cannot by will dispose of his dead body.  If there can be no property in a dead body it is impossible that by will or any other instrument a body can be disposed of.”

At common law, the executor named in a deceased’s Will has the right to obtain possession of the body and arrange the deceased’s funeral.

Young J examined the typical common law stance in Smith v Tamworth City Council(1997) 41 NSWLR 680: a named executor has the primary privilege of burying the deceased’s body. When the deceased does not appoint an executor, the individual with the strongest claim to a grant of letters of administration will be granted the privileges typically afforded to the executor. In such cases, a surviving spouse or de facto partner is prioritised over the children’s rights. Furthermore, suppose there are two individuals with equal standing concerning a grant of letters of administration. In that case, the practical considerations of ensuring that the burial can proceed without unnecessary delay will ultimately influence the decision regarding who takes charge. 

As the grant is determined by who has the most substantial interest, In the Estate of Slattery (1909) 9 SR (NSW) 577; 26 WN (NSW) 116, the individual with the most significant interest is typically anticipated to conduct the burial of the deceased.

The matter

In Phillips v The State Coroner & Anor [2024] SASC 134, the deceased did not leave a Will; consequently, there is no executor. In South Australia, r34 of the Supreme Court Probate Rules 2015 established a hierarchy for individuals seeking to obtain a grant of letters of administration, with the domestic partner holding the foremost priority. The next highest priority is given to the children of the deceased and, subsequently, to the deceased’s parents.

In Jones v Dodd (1999) 73 SASR 328, Perry J stated that prioritising the individual most capable of making such an application becomes somewhat unrealistic if there is no realistic chance of applying for a grant of letters of administration on intestacy. The Court of Appeal reviewed case law in Marschall v Elson [2023] SASCA 1 at [59].

Following this examination, especially Smith v Tamworth City Council (1997) 41 NSWLR 680, 691-693 (Young J) and Jones v Dodd (1999) 73 SASR 328, [27]-[52] (Perry J, with the agreement of Millhouse and Nyland JJ) the essential principles seem to be these:

• 1. A dead body is not considered property and cannot be owned by anyone; however, the law may provide certain protections for those who lawfully possess a corpse or its parts under specific circumstances. 
• 2. When an individual passes away, leaving behind sufficient property, the responsibility for burying the body falls to their administrator if intestate or the executor or executrix if there is a Will. A husband is no longer required to cover his deceased wife’s reasonable funeral expenses. 
• 3. If the deceased lacks the financial means for burial, the individual occupying the location where the person died must handle the body and arrange for its burial. This responsibility also applies to hospitals and medical facilities. 
• 4. In cases where the deceased is intestate but has an estate, the person who undertakes the burial and covers the funeral costs typically has the right to administer the estate and can recover those expenses from it. 
• 5. When someone dies without a valid will, and there is little to no estate, or it seems unlikely that anyone will apply for letters of administration, the preferences of the individual most likely to obtain such an order will not automatically carry significant weight because of this situation alone. 
• 6. Instead, an appropriate approach for all matters relating to intestacy involves a flexible consideration of common law principles and practical aspects while factoring in any cultural, spiritual, and religious considerations that hold significance based on the evidence presented, including the wishes of the deceased and their family members. 

It is not always necessary to resolve every conflict that arises from the evidence, and the Court should remember that the dignity of the deceased and the community’s conscience necessitate a prompt declaration regarding the manner and location of the burial, all while maintaining the proper respect and decency for those involved.

Background

Scot Adam Phillips died on 10 September 2024 at the age of 19. Police have charged someone with his murder. The Coroner currently has the deceased’s body in custody, pledging not to release the body until the conclusion of legal proceedings.

The applicant is the mother of the deceased. The dispute is between her and the second respondent, the deceased’s twin sister and the applicant’s daughter. Both are seeking possession of the body to arrange a funeral. Another point of contention is whether the deceased should be buried or cremated.

The deceased and the second respondent were removed from the applicant’s care when they were a few months old and placed into foster care. The applicant had visitation rights, which she exercised until the children were around nine years old. 

There was a lapse in contact for several years until the children turned 14, after which some level of communication resumed with the deceased. The extent of this contact isn’t clearly defined, but the parties exchanged some text messages.

The deceased faced legal issues and gaol between the ages of 17 and 18 with his last prison stint at Yatala Labour Prison; he was released about nine months before his death. During the deceased’s incarceration, the applicant maintained contact with him mainly through text messages. The applicant presented some evidence of communication via Facebook at the hearing. During this time, the applicant also visited the deceased at his residence at least once. She mentioned having other text conversations with him during this period.

The evidence indicates that the relationship between the applicant and the deceased was complicated. It remains uncertain how much the deceased wanted to restore his relationship with the applicant. Some evidence from the second respondent suggests that he viewed the applicant as someone who could provide financial support.

The Court accepted that a reasonable summary of the situation is that the applicant desired to reconnect with the deceased. However, the deceased may not have fully shared this desire. It is undisputed that the second respondent shared a much closer bond with the deceased than the applicant.

Burial v Cremation

The Burial and Cremation Act 2013 governs the legal framework for disposing of bodily remains, including burials and cremations. The Burial and Cremation Act 2013 (the Act) is central to the dispute between the applicant and the second respondent regarding whether the deceased should be buried or cremated. Under one interpretation of the Act, burial is the default method, while cremation requires specific conditions to be met.

Section 9 of the Act outlines offences associated with cremation, including:

• Disposing of bodily remains by cremation without a cremation permit issued by the Registrar (penalty: $10,000 or two years imprisonment).
• Cremating remains at an unauthorised location (penalty: $10,000 or two years imprisonment).
• Cremating remains despite objections from a personal representative, parent, or child of the deceased unless the deceased explicitly directed cremation in a will or other formal document (penalty: $10,000).

The Registrar of Births, Deaths, and Marriages issues cremation permits under specific conditions. Applications may be made by a personal representative, a close relative, or an individual deemed suitable by the Registrar. However, a permit cannot be issued if:

• A legal personal representative, parent, or child objects unless the deceased directed cremation.
• A court order prohibits cremation under s11 of the Act.
• The death is a reportable death under the Coroners Act 2003.
• If there is a legal dispute over possession of the body, the Registrar may delay issuing a permit until the matter is resolved.

The Attorney-General, State Coroner, or magistrate may issue an order prohibiting cremation under s 11 of the Act if there is reasonable cause, absolutely or until specific conditions are met.

In this case, the applicant, a parent, objects to cremation. Under section 10(7), the Registrar cannot issue a permit for cremation, meaning burial is the only lawful option, as no license is required for burial.

The Act provides no mechanism for resolving disputes between family members regarding burial or cremation. Section 5 clarifies that the Act does not override other laws unless there is a direct conflict.

In Marschall v Elson [2023] SASCA 1, the Court of Appeal addressed the issue of cremation but did not specifically discuss s 9(3). The Court determined that an order permitting cremation resolves disputes, rendering objections under section 9(3) moot.

The Court retains inherent jurisdiction in burial and cremation matters. Section 5 of the Act ensures that the Court’s inherent power is not diminished, requiring the Act and intrinsic jurisdiction to work harmoniously. The Court must exercise its inherent jurisdiction to resolve the dispute in this matter. Both parties made offers:

• The applicant proposed burial, with the second respondent managing the arrangements.
• The second respondent proposed cremation, sharing the ashes, and allowing a private viewing for the applicant.

The decision 

The Court acknowledged the lack of clear evidence regarding the deceased’s wishes but determined that the second respondent’s funeral arrangements would have broader family support. Balancing the wishes of both parties, the Court decided:

• The second respondent will manage the funeral arrangements.
• The applicant will have a private viewing of the deceased.
• The deceased will be cremated.
• The ashes will be shared equally between the applicant and the second respondent.

Although the Court recognises the emotional pain this decision may cause, it aims to balance the interests of all involved while respecting its inherent jurisdiction and the provisions of the Act. Final orders will be determined after hearing submissions from the parties.