Case Note – Donahue v Morleys Funerals Pty Ltd [2016] QSC 137

The deceased was of Tableland Yidinji descent and his mother sought for him to be buried in accordance with the customs of their culture. His de facto spouse objected and produced a will that contained instructions about the deceased’s wishes for the disposal of his remains.

The issue before the Court was whether the deceased had left signed instructions for cremation in accordance with section 7 Cremations Act 2003 (Qld). If he had, then that would prevail over the objections of his mother.

The deceased’s de facto spouse produced a copy of his Will which stated “cremated is my wish of burial”. There were a number of difficulties with this Will, including that it was only a black and white copy, that the signature of the deceased was inconsistent with other examples, and that it was not an unequivocal instruction that the deceased be cremated.

While the Court was awaiting a colour copy of the Will, further evidence came to light. A statement of the witness to the Will was produced to provide evidence that the deceased knew and approved the contents of the Will.

In addition, further sample signatures of the deceased were also produced. The Court noted that in light of the deceased’s partial literacy and the new evidence, the deceased had left signed instructions for cremation.

Thus, the deceased’s mother was unable to object to the cremation under section 8.

Further Reading

Cremations Act 2003 (Qld)

Disputes about the disposal of the deceased’s body

Case NoteSwain v Centenary Memorial Gardens Pty Ltd & others BS 705/17 per Boddice J on 1 February 2017