Legal Tip 285: Funeral and Burial Disputes

Who has the power to decide how someone’s funeral will be arranged?

Ordinarily, the named executor or executrix has the right to arrange for the disposition of the deceased’s body if that person is ready, willing and able to do so: Keller v Keller (2007) 15 VR 667, 669 [10]-[12

A recent case involved a dispute over whether there would be a Catholic Burial or a Muslim Burial for a person that died.

The deceased was born a Muslim but converted to Catholicism, a branch of Christianity. The wife was a Catholic and was also sole executor of the estate. She wanted a Catholic funeral, but the brother of the deceased wanted a Muslim funeral so he set about applying to the courts for an order along these lines.

The court ruled that the executor had the right to decide.


For those of you who believe in such things making the wrong choice of executor could have consequences for eternity.

Gus Kak v Allison Sarah Kak (nee Boman) [2020] NSWSC 140

Gus Kak v Allison Sarah Kak (née Boman) - NSW Caselaw


Note that the death happened on 13 Feb 2020 and the court hearing was just over a week later on 24 Feb with the decision on 26 Feb.

 

That delay alone would have killed him.

 

Seems to also come up a bit with people who die soon after leaving a partner. Used to also occur a lot with same sex relationships especially where the person had not been open about their life with immediate family so poor uncle Joe would die and his family would disregard his life partner Fred.... Sorta like that movie,....Death at a Funeral. One of the benefits of open family laws seems to have been the encouragement of better estate planning and super death benefits for affected persons. For such peoples the message should be that they need a will and it should reflect their present thoughts.