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Back to "Wills and Estates Newsletter - May 2023"


What happens to your body on your death?

An interesting question was raised recently regarding who has the control over your body on your death? In other words, who makes the decisions about your burial or cremation? Is it your spouse, children, next of kin or your executor? In this article, we will take a closer look and help answer that question. We will also discuss the disposal of your ashes.

Who has control over the disposal of your body?

(a) There is a Will

Where the deceased had a Will and an executor has been appointed, the position is relatively clear in that the executor has both the duty and the power to dispose of the body in an appropriate manner. Until disposal of the body, the executor also has custody of the body for the limited purpose of its proper disposal. Should there be a dispute, the rights of the executor will be enforced against other interested parties.

Any instructions in the Will as to the disposal of the deceased’s body are expresses of preference but not strictly enforceable (however they can be used as evidence of the deceased’s wishes should a dispute arise between relatives). The common law has consistently held that there is no property in a dead body and therefore no right of ownership. This means you should nominate an executor who you believe will carry out your wishes. Should there be a dispute regarding the disposal of your body, the rights of the executor will be enforced against the other party. For an example, in the case Smith v Tamworth City Council (1997)[1] it was stated, “the executor is expected to consult with other stakeholders but there is no legal obligation”.

Although, when it comes to cremation, a written direction by you that your body is not to be cremated is legally binding[2]. Speaking of cremation, it is important to note that if you are cremated, your ashes will be given to the person who lodged the application. This means you need to ensure that the person you wish to have the rights to your ashes (i.e. your executor) knows that should another relative offer to assist them with arranging your cremation, that relative will have the legal rights to collecting the ashes. To avoid a dispute your executor should not allow others to assist in arranging the cremation.

We recently had a case involving a spouse and an executor where the spouse offered to assist and arranged the cremation which then meant she was entitled to the ashes. The executor wanted the ashes to give to the deceased’s adult son. Had the executor realised that by allowing the spouse to arrange the cremation she was giving her the right to those ashes, she would have arranged the cremation herself.

(b) There is no Will

Where there is no Will and therefore no executor, the issue of who has control over the body can be more complicated. It was formerly the case that the duty of disposal of the body resided with the next of kin. In a general sense this is still the case[3], but there is some dispute as to whether those who have either obtained letters of administration[4], or those entitled to obtain letters of administration but not having yet done so, have an absolute right. Where administration has been granted, the position is the same as that of the executor. In cases where no administrator has been appointed, the general position is that the person with the best claim to seek letters of administration has the duty and power to determine arrangements as to the disposal of the body. Cultural and religious issues may also be involved where there are two or more persons who are equally entitled to apply for letters of administration. In these circumstances, the Court is guided by practical issues, including residence in the relevant jurisdiction, family situations and unreasonable delay in determining disposal.

Here is an example:

In the Estate of Jones[5], the deceased’s de facto spouse wished to bury her de facto spouse where they resided but the deceased’s father wished to bury him over 700kms away in accordance with cultural and religious practices[6]. The de facto wife claimed that the deceased showed no particular inclination to follow Aboriginal customs and that the deceased was occasionally a Church goer[7]. The Court was confronted with two fairly clear and opposing claims:

  1. a de facto spouse, which has some support by reference to common law principles[8], and who also gets the support of community attitudes that are fairly widespread in Australian society; and
  2. the father, which is supported by genuinely held beliefs about Aboriginal custom and law, beliefs which should be respected as far as possible[9].

In this case, the Court found in favour of the de facto spouse basing their reasoning on the common law principles and the claim by a de facto spouse of 9 years, who has two children by the deceased, as the stronger claim and also the fact that the deceased had left his parents and moved over 700kms away to make a life with his de facto wife.

Ultimately, the Court will have to determine the appropriate person taking into account the particular facts of the case with respect given to religious, cultural or spiritual matters. However, there are a number of principles to assist the Court in their decision-making process such as those stated in Young J’s decision in Smith v Tamworth City Council[10]:

  • the person with the best claim to administration of the deceased’s estate will have the privileges equivalent to an executor;
  • a surviving spouse or de facto partner will be preferred to the rights of children; and
  • where there are two people with equal ranking, the practicalities of ensuring burial takes place without delay, will decide the issue.

Spreading your ashes

You can scatter your loved one’s ashes in public but in most cases you will need to obtain permission from the local council. If it is on private land, then you will need to obtain permission from the owner. If you own the land yourself, then the decision is entirely yours. Ashes can also be scattered at both private and public beaches and oceans however, again you need to obtain permission from the local council or governing body before you do this. If you wish to take those ashes on a plane (either overseas or domestic) you will need to seek further information from your funeral director or the relevant airline for their policies. Should you wish to spread the ashes at sea, you must seek the permission of the vessel owner first.

Takeaway message

For peace of mind, ensuring you have a Will in place (whether it sets out your burial wishes or not) will ease the process of who has the authority to make the necessary decisions with respect to your burial or cremation. Please contact Gillian Kirwan at Carroll & O’Dea Lawyers on 02 8226 7321 should you wish to discuss this topic in greater detail.


Gillian Kirwan, Associate
Michael Barnes, Partner

[1] (41 NSWLR 680 at 694)

[2] Public Health (Disposal of Bodies) Regulation 2002 Part 6, Reg 34

[3] Where the coroner is involved they will make a decision as to who they consider is senior next of kin when determining to whom the deceased’s body should be released: this decision can be challenged and the Coroner joined in a court application to be bound by a final court decision.

[4] meaning a Court order which allows the person appointed as administrator to deal with the deceased’s estate

[5] (dec’d); Dodd v Jones [1999] SASC 458; BC9907405

[6] the father was an Aboriginal man

[7] [para 27]

[8] meaning previously decided cases

[9] [para 29]

[10] Smith v Tamworth City Council (1997) 41 NSWLR 680

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