Disputes about the disposal of the deceased’s body
When a person passes away, disputes can arise about the disposal of the deceased’s body. Such disputes often require immediate resolution as the body cannot be held indefinitely and must be released for cremation or burial.
- Disputes about Burial and Cremation
Sometimes, family members cannot agree whether their loved one should be buried or cremated.
It is important to be aware that the Cremations Act 2003 (Qld) prohibits cremation where the deceased expressed in writing an objection to being created.
Further, the same Act provides that if there is an objection raised by the deceased’s spouse, adult child or parent; or a personal representative of the deceased, the body cannot be cremated. It is an offence to carry out cremation of the deceased’s body where an objection exists.
- Disputes over the collection of the deceased’s ashes
The general rule is that the ashes should be released to the deceased’s legal personal representative – that is, the executor or administrator of their estate.
However, sometimes there are practical issues in determining the identity of the legal personal representative where the will isn’t easily able to be located, if there is no will, or if there is a dispute about the validity of the will.
See Case Note – Swain v Centenary Memorial Gardens Pty Ltd & others BS 705/17 per Boddice J on 1 February 2017 where some of these issues arose for consideration by the Court.