Fighting over a loved ones remains

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The death of a loved one can be an extremely stressful event. There are times when the process can go smoothly and easily. Such situations are usually founded upon the deceased persons’ careful estate planning, including their burial preferences. However, circumstances can occur leaving the loved ones at odds over the proper manner and choice of laying their deceased family member to rest. In these instances, emotions can run high and grief and loss can turn to anger and hurt.


In the event that the deceased has left explicit instructions for their final burial or memorial service, the executor of the Will, or the person in possession of the written statement of the deceased, is tasked with the responsibility of following the directives. The wishes of the deceased should be followed with as much care and accuracy as possible.


However, in the absence of clear directives, some families will struggle with how the remains should be handled. The most predominant choices are:

  • Burial
  • Cremation


In addition, families may have issues choosing the type of ceremony to commemorate the life of a loved one. It is always in everyone’s best interests to come to compromises that allow each family member a voice in the process.  Options for a respectful commemoration include;

  • Traditional religiously oriented options including;
  • Wake
  • Funeral
  • Memorial Services allowing;
  • Family members to share memories
  • A particular speaker who was close to the deceased
  • Informal gathering to share a meal


If the family cannot come to a compromise on the manner in which a deceased person should be laid to rest, the law can step in to assist. However, this is an expensive and timely pursuit which can cost family members both financially and emotionally.


Initially, the court will likely find in favour of the preferences of the executor of the will. However, if there is no executor of the will, then the nearest living relative can apply for a grant of administration to acquire the legal right to proceed with making the necessary decisions. While this process is usually used for the distribution of assets in the event of a person passing away without a will, there have been exceptions made and the process has been used to resolve other types of disputes. The following persons can qualify for a grant of administration;

  • Spouse/De Facto Spouse
  • Children
  • Parents
  • Siblings of the deceased
  • Grandparents
  • Aunts/Uncles
  • Cousins


These categories must be exhausted in the order they are represented. Hence if there are no children or surviving spouse, then living parents of the deceased may apply for the right to make burial decisions.


Prior to allowing a filing for a grant of administration the court will need proof of the following;

  • The absence of a will
  • The death certificate


It is possible that traditional notice requirements will also be necessary to alert other family members to the issues being adjudicated. However, it is highly likely that all family members that would have potential standing, would already be notified and available to be present for the court.


In addition to the process outlined above there is case law that applies to these forms of legal disputes. The main findings include; an executor has the right to make all decisions pertaining to the estate and it is imperative that if you have particular wished that you express them in writing to one or more family members so as to allow for the greatest assurance that your wishes will be carried out.


While it is possible to get assistance from the courts when conflicts arise surrounding burial issues, it is always in the family’s best interests to resolve the issues quietly amongst themselves taking into account the known and easily inferred wishes of the deceased. This will allow for the family to experience closure in a manner that is sans conflict and anger.


In the event that you find yourself in need of assistance regarding burial rights, please contact the law offices of Owen Hodge Lawyers. At Owen Hodge, we are always happy to assist clients in understanding the full ramifications of any and all of your legal needs. Please feel free to call us at your earliest convenience to schedule a consultation at 1800 770 780.


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