Case Note – Swain v Centenary Memorial Gardens Pty Ltd & others BS 705/17 per Boddice J on 1 February 2017
The deceased died intestate thereby leaving no personal representative. The deceased was cremated and a dispute arose as to who could collect the ashes. The crematorium advised that they would not wait for the de facto spouse of the deceased to make an application for letters of administration before they released the ashes to the deceased’s parents.
The applicant de facto spouse made an urgent application to the Court to restrain the release of the ashes from the crematorium. Following a failure to appear by the parents of the deceased, the Court made an order releasing the ashes to the applicant de facto spouse. This case highlights the importance of acting promptly when it comes to decisions about the disposal of the deceased’s body. Without the urgent application made within several hours, the crematorium may have released the deceased’s ashes to his parents, ultimately resulting in a totally different outcome to the Court’s final decision.