December 19, 2014

This is not often a question that needs to be answered.  Usually loved ones follow the deceased’s wishes or can agree on what is to happen once a person passes away.            

However disputes may arise if there are conflicting wishes or no wishes expressed at all.  It is then important to know who decides what happens to a body after a person passes away.  

At law, the deceased’s executor or administrator (if there is no will) has authority to organise the funeral and determine what happens to the body.  However, if a person has left written instructions to be cremated then that direction must be followed.

The Queensland Courts have at times had to determine such disputes.  Recently, a dispute of this nature arose between a deceased’s three adult children and his second wife of short duration (Laing v Laing [2014] QSC 194).

The children wished to bury the deceased in Canberra in a plot he had purchased during his lifetime next to his former wife.  The second wife wished for the deceased to be cremated.  There were no written instructions to this effect.  The deceased was 84 when he died. 

The children gave evidence of the deceased’s strong ties to Canberra despite him having moved to Queensland to be with his second wife and her family, two years prior to death.  The second wife gave evidence that she had met the deceased in late 2010 and they married in September 2011, one week after her divorce with her previous husband was finalised.  

Ultimately, the Court determined that the deceased’s body be released to the children for burial in Canberra. 

This serves as a reminder to thoroughly consider your affairs and where appropriate discuss them with your loved ones.