Although death is the one thing in life that is certain, it can be an unpleasant or sometimes inappropriate conversation to have with our loved ones. For this reason, many of us delay, or altogether avoid discussing what our wishes are for the disposal of our body after death.

However, when a person dies, the first priority is usually to make arrangements for the funeral and/or disposal of their body. Quite often, these arrangements spark dispute amongst the deceased’s family members.

In Queensland, the position of the common law (law derived from court cases), in relation to the rights to deal with the disposal of a deceased’s body is summarised below:-

• Testamentary wishes (i.e. directions left in a person’s will), regarding the disposal of the deceased person’s body, are unenforceable and void, because at law there exists no property in a deceased body or its parts.
• The executor of a deceased person’s will has a duty to arrange for disposal of the body, including the manner and place, and therefore the executor has the right to possession of the body. The deceased’s wishes regarding disposal may be followed at the executor’s discretion, but the executor has no obligation to consider the deceased’s wishes.

The common law position is altered only by the Cremations Act 2003 (“the Act”).

Section 7 of the Act provides that if an executor or personal representative knows that the deceased person has left signed instructions for his or her remains to be cremated, they must ensure that an application for permission to cremate is made, and if permission is issued, ensure that the deceased person is cremated in accordance with the signed instructions.

Section 8 of the Act (which does not apply if the deceased left signed instructions to be cremated), further states that a coroner or independent doctor must not issue a permission to cremate if they are aware that any of the following persons object to the cremation:-

1. a spouse, adult child or parent of the deceased; or
2. a personal representative of the deceased.

This section overrides the common law to the extent that it qualifies an executor or personal representative’s right to decide how to dispose of the deceased.

The application of section 8 of the Act was recently highlighted in the Supreme Court decision of Laing v Laing [2014] QSC 194. In this case, the deceased did not leave signed instructions to be cremated, so section 7 did not apply.

James was 84 years old at the time of his death, and was living in Queensland with his second wife, Tracey.

The case involved a dispute between James’ three adult children (being children of James’ first wife, Christobel), and Tracey, as to the method and place of disposal of James’ body.

The children wanted their father’s body to be returned to Canberra to be buried in a plot next to their mother. When Christobel died in 2002, James had purchased a double plot so that he could be buried next to her, and had frequently expressed to his three children his desire to be buried next to their mother following his death.

Tracey wanted James to be cremated, and introduced questionable documents as evidence purporting to be in James’ handwriting (which were not signed), that he wished to be cremated. Prior to his death, administrators had been appointed to act on behalf of James as he was found to be incapable of managing his own affairs, and was vulnerable to undue influence and financial exploitation due to his mental condition.

The court ordered that James’ body be released to his son for the purposes of a funeral and subsequent burial in Canberra. A number of factors contributed to the court’s decision, namely:-

1. James and his children had a close connection with Canberra, with James having spent 40 years of his life living and working there;
2. His first wife is buried there, and at the time of purchasing the double plot for himself and Christobel, James’ capacity was not impaired or in question;
3. James had only formed a relationship with Tracey in recent years, who was much younger than him and whom he had met through her position as a sex worker for him;
4. The decisions made by the ACT and QLD Civil and Administrative Tribunal confirmed that James was unable to make properly considered judgments later in his life; and
5. Apart from Tracey and her children, James had no connection to Queensland whatsoever.

In summary, if you wish to be cremated and want to ensure that your executor carries out your wishes, you should leave signed instructions to that effect. The alternative is to include a statement of your wishes in your will and trust that your executor and/or loved ones will honour your request. Communicating your decision with your loved ones prior to your death is also important, as illustrated by the abovementioned case.