In State of New South Wales v Gill (2024) 115 NSWLR 536; [2024] NSWSC 1263, Lindsay J expressed that there is no proprietary right in a human body after death, as established in Doodeward v Spence (1908) 6 CLR 408, that ownership cannot be attributed to a corpse. Consequently, an individual cannot dispose of or determine the fate of their body after death. In Doodeward, Griffith CJ expressed an exception if that applies if a person, through the lawful exercise of skill and work, has processed a human body or part thereof in such a manner that it acquires attributes distinguishing it from an ordinary corpse awaiting burial, and the body or part is displayed in the public interest, a stillborn child with two heads was preserved by a doctor who exhibited it in his office.
The Doodeward exception would also apply, for example, to a mummy displayed in a museum. Questions concerning the disposal of remains, therefore, engage a strong public interest that may override competing private claims.
Importantly, the Court’s role is not to determine ownership but to evaluate who is best suited to arrange the deceased’s disposal, prioritising respect for the deceased’s wishes and relevant circumstances. The primary goal is to ensure an orderly and dignified disposal, emphasising respect for the deceased’s dignity, personhood, and relationships.
Ordinarily, this requires timely and empathetic consideration of both:
- the wishes or preferences of the deceased; and
- the wishes of those closely connected to the deceased, particularly family members and relevant communities.
Prima facie, the deceased’s own wishes and values should prevail where practicable, particularly where those wishes intersect with cultural, spiritual, familial, or communal considerations, to reinforce respect for individual autonomy.
Smith v Tamworth City Council [1997] NSWSC 197 clarified the legal authority for burial arrangements. It specified who can arrange the burial or cremation of a deceased person. Young J provided 15 propositions that are considered the foundation of Australian burial law.
Smith v Tamworth City Council confirmed that a deceased person’s burial or cremation wishes deserve respect. Nevertheless, they are not legally binding. The executor named in the Will holds the controlling authority. If the executor is absent, the person entitled to administer the estate assumes control. This is usually the surviving spouse.
In Walker v Leneve [2025] NSWSC 839, Slattery J emphasises flexibility, cultural sensitivity, and community conscience. These factors take precedence over rigid rights or probate rules. Burial disputes should be resolved through practical, context-driven judgments. These judgments must be guided by dignity and respect. They should also consider the unique facts of each case.
In exercising its discretion, the Court may consider a wide range of factors, including:
- the practical logistics and funding of the funeral or burial;
- the known wishes of the deceased;
- the wishes of family or community members;
- cultural or spiritual considerations relevant to the deceased’s life; and
- accessibility of the remains to those wishing to mourn or commemorate the deceased.
Although principles from probate and estate administration law may provide useful guidance, they do not rigidly bind the Court. The jurisdiction must remain flexible and responsive to contemporary family and community relationships.
In State of New South Wales v Gill (2024), Lindsay J emphasised that disputes about funeral arrangements should not become sidetracked by collateral controversies — such as contested Wills or disputes over de facto relationships — where doing so would distract from the fundamental purpose of the jurisdiction: ensuring a respectful, practical, and orderly disposition of the deceased’s remains.
Background
In Morgan v Morgan [2026] NSWSC 539, a probate and funeral dispute, the Supreme Court of New South Wales considered who should control the disposal of the body of the late John Thomas Morgan (the deceased), who died in April 2025. Lynette Morgan (the Plaintiff), the deceased’s daughter, sought orders to arrange the deceased’s cremation in accordance with the deceased’s wishes expressed to family members.
Ying Morgan (the defendant) and his widow opposed cremation. Seeking preservation of the deceased’s body pending further coronial investigation into the defendant’s allegation that hospital staff intentionally killed the deceased.
The plaintiff testified that, shortly after the deceased’s death, a note was found on his iPhone titled “Last Will and Testament for John Thomas Morgan b27-09-1947 on this day 25-07-2025.” The date “25-07-2025” is odd, as it’s months after his death. The document states the plaintiff is to be the executor. The defendant disputes its authenticity, alleging forgery, which the plaintiff denies.
Neither has found a formal Will or record of the deceased’s testamentary intentions. The court need not decide on the document’s validity now. The plaintiff believes the main asset was jointly owned property in Maroubra that passed to the defendant by right of survivorship. The plaintiff knows about a Mazda, a superannuation fund, a share account, and bank accounts, but not their values.
The plaintiff acknowledges the super fund might not be part of the estate. The plaintiff’s main goal in these proceedings is to ensure the deceased is cremated and ashes scattered as per his wishes, to honour him and his life.
The Deceased’s Body
In June 2025, the Prince of Wales Hospital told the Plaintiff they couldn’t store the deceased’s body, which was then collected by Statewide Mortuary Transfer and delivered to Creightons Funeral Service. The Plaintiff and Mr Huw Morgan arranged cremation and informed the defendant. On 17 June 2025, a solicitor for the defendant asked Creightons to transfer the body to the Coroner’s Court. Still, they said it required lawful steps, and the State Coroner declined jurisdiction.
The body has been stored at Creightons since 13 June, in refrigeration, but not indefinitely, with a daily storage fee of $100. Creightons will only proceed with cremation with the defendant’s consent or a court order, which has been withheld, due to the defendant’s concerns about the death. The defendant, a retired medical researcher, wrote to the State Coroner on 30 June 2025, claiming the death was premeditated murder, and requested an examination of the body.
The Coroner
The Coroner declined jurisdiction on 11 July 2025 and filed no inquest in Court. The defendant self-represented at a hearing on 13 May 2026, expressed ongoing concerns and criticism about the deceased’s treatment, alleging hospital misconduct, and accusing the hospital of causing the death.
Williams J found that the deceased had suffered from acute myeloid leukaemia and that the treating doctor had certified death as resulting from neutropenic sepsis associated with the illness. Although the defendant, a retired medical research scientist, strongly disputed the recorded cause of death and alleged misconduct by hospital staff, the State Coroner declined to exercise coronial jurisdiction.
Williams J observed that the defendant’s allegations were unsupported by independent medical or scientific evidence and that there was no realistic prospect of a coronial inquest occurring. Evidence from the deceased’s son and sister established that the deceased had repeatedly expressed a wish to be cremated and to have his ashes interred with those of his father. Her Honour accepted that the Plaintiff, supported by her brother and aunt, was best placed to carry out those wishes.
Williams J emphasised that the Court’s inherent jurisdiction governs disputes concerning the disposal of human remains, for the purpose of ensuring the dignified and orderly disposal of the deceased’s body. In doing so, Williams J adopted principles articulated by Lindsay J in State of New South Wales v Gill (2024) 115 NSWLR 536; [2024] NSWSC 1263,
62. As has been noted, the starting point is to recognise that there is generally no property in a dead body of a human and that, in the determination of a dispute about disposal of a body, there is a strong public interest element that may prevail over private claims of any type.
63. The task of the Court is generally to make an evaluative judgement as to who is best suited or best able to deal with the remains of the deceased given the various factors identified in the authorities: Dayman v Dayman [2024] NSWSC 838 at [106], citing White v Williams (2019) 99 NSWLR 539 at [114].
64. The purpose for which the Court’s jurisdiction exists governs its exercise. It exists for the purpose of facilitating, so far as may be reasonably practicable, an orderly disposal of the mortal remains of a person whose dignity, as a person, should be respected.
65. Respect ordinarily requires that, so far as may be reasonably practicable, consideration be given in a timely and empathetic manner to the wishes or preferences of the person and the person’s “significant others” (including, particularly, members of his or her family, however defined) to which the person belonged. The concepts of “personhood”, “respect” and “belonging” are of central concern.
66. In all decision-making the central personality is the deceased, recognising that he or she must be taken, prima facie, to have lived and died in community with others with whom he or she may have shared perspectives on life, death and an afterlife.
67. Because the deceased is the focal point for decision-making his or her perspective should ordinarily, subject to practical constraints, prevail at the intersection between his or her wishes or preferences and those of any community to which he or she belonged.
68. I repeat what a [sic] wrote in Brown v Weidig at paragraphs [36]-[38], [60]-[61] and [63]:
“[36] The law governing the disposal of a dead body works best when there is a consensus about what is to be done or at least an acquiescence on the part of everybody who might reasonably be thought to have a right to object. The Court’s jurisdiction is available if, in a particular case, a problem needs to be solved by an independent adjudication. For the most part, in the ordinary course, the law of succession provides a template to guide decision making without recourse to the Court.
[38] Ultimately, in the absence of legislation governing the outcome of a case, the Court is required, in the determination of a dispute as to who has carriage of disposal of a body, to exercise a discretion taking into account a range of factors (depending upon the particular circumstances of the case and unable, prudently, to be stated exhaustively in the abstract) that may include:
(a) the logistics and available funding for disposal of the body;
(b) the wishes or preferences of the deceased, if known;
(c) the wishes or preferences of the community or communities, in which the deceased lived (including, but not necessarily limited to, members of family);
(d) any cultural or spiritual factors material to how the deceased lived life; and
(e) the accessibility of the deceased’s mortal remains to those who seek to mourn a death or to remember.
…
[60] Although convenience often attaches to use of the law of probate and administration of estates as a paradigm for decision making, a court is not obliged to employ it if the administration of justice in a particular case points in another direction. What is ultimately required is a decision, informed by practical wisdom, which allows a body to be disposed of in an orderly way with as much respect as may be possible for the dignity of the deceased and those of his or her community, or (as in this case) his or her communities, who mourn a death and yearn to remember a life.
[61] The necessity for the Court’s jurisdiction to be and remain flexible is reinforced by changes in the way members of contemporary society live and die in community. …
[63] … [Too] slavish an adherence to technical requirements of the law of probate, the administration of estates or, it might be said, family law in contested proceedings about the disposal of a dead body runs a risk of diverting the Court, and warring parties, from the purpose of the Court’s jurisdiction into unresolvable, collateral disputes about the validity of a will, or the existence or otherwise of one or more de facto relationships, for example. It is important that everybody remain focused on why the Court’s jurisdiction exists and how it can best be exercised.”
stressing that the deceased’s wishes ordinarily remain central, together with the interests of family members and practical considerations.
Her Honour noted that the deceased’s body had already been held in storage for many months while the dispute continued, causing distress to family members and creating practical difficulties because the funeral home could not store the body indefinitely. Williams J concluded that further delay was unjustified and inconsistent with respecting the deceased’s dignity and expressed wishes.
Her Honour therefore ordered:
- formal registration of the deceased’s death under the Births, Deaths and Marriages Registration Act 1995 (NSW);
- that the body be released to the Plaintiff so she could arrange cremation and memorial arrangements;
- that the Plaintiff be appointed interim administrator of the estate for the limited purpose of obtaining a death certificate and cremation permit;
- that subpoenas issue to banks, CommSec and the self-managed superannuation administrator to identify estate assets; and
- that the Plaintiff’s costs be paid from the estate on an indemnity basis, with liberty to seek costs against the defendant if estate assets proved insufficient
Importantly, in Morgan v Morgan [2026] NSWSC 539, Williams J declined to determine at this stage whether a document found in the Notes application on the deceased’s iPhone constituted a valid testamentary document, leaving that issue for future proceedings.