Doherty v Doherty[2006] QSC 257

SUPREME COURT OF QUEENSLAND

[1] Robert Doherty died on 20 April 2006 aged 49 years.  In keeping with the sensitivity and respect shown during argument I shall refer to him throughout by his given name Robert.  Because of the commonality of the surname of the other interested members of the family I shall refer to them also by their given names.

[2] Robert is survived by his wife Connie Doherty (“Connie”) and their four children – twins named Erina and Pania (now eight years), Jai (five years) and Keana (10 months).

[3] Robert’s remains were cremated on 26 April 2006 after the family duly observed the rituals ordained by their Maori tribal beliefs prior to the disposal of the body of a tribal member.  The ashes of the deceased are currently held by the second respondent which has been discharged from the action upon its undertaking to abide by the order of the Court.  Robert died without making a will or leaving formal directions about the disposition of his body.

[4] The applicants are respectively Robert’s mother Maude and his two sisters Gina and Paula.  The family are members of the Ngati Rangi, a sub-tribe of the greater Ngati Porou tribe.  The tribe is associated with the east coast area of New Zealand’s North Island.  Robert was proud of his Maori heritage and was mindful and respectful of his culture and its protocols.

[5] The issues between the remaining parties goes to their respective rights as to the property in the ashes, entitlement to possession of the ashes and directions as to how the ashes should be dealt with.

[6] Connie and Robert had lived together as man and wife since October 1987.  They formally married on 20 July 1996.  They had met in London but had spent most of their joint lives together in Australia.  They lived in Perth for one year and thereafter for 14 years in Cairns.  Robert has lived a total of 19 years away from his homeland of New Zealand.  Despite this I find that he maintained close links with his homeland and the members of his family who continued to live there. 

[7] Connie too is of Maori background, though of a different tribe.  Her tribe is in the northern region of the North Island but it has similar cultural beliefs and systems to those of the Ngati Porou.  Connie has knowledge of traditional Maori culture and protocols.  She has a strong attachment to them and she ensured that the appropriate protocols were followed before the cremation took place. 

[8] It is generally accepted that Robert would have been buried in New Zealand had he been living there at the time of his death.  The suddenness of his final illness prevented this.  The option to cremate his body was supported by the family.  Of these matters Connie said:-

“Cremation is not a common practice for Maori living in New Zealand.  For Maori living outside New Zealand, it is a popular option when returning to New Zealand is preferred.  Our wish was to do just that.  To have a local funeral then a cremation would mean necessary time to grieve for both family and friends in Cairns.  The eventual return to New Zealand and a final resting place would continue to be in accordance with Maori protocol.  Family support was unanimous to have our wishes proceed. Maori tradition can be flexible when needed, particularly in pursuit of cultural appropriateness.”[1]

[9] I am satisfied that Connie and Robert had a close and loving relationship between themselves and with their four children.  Their residence and bank accounts were held in joint names.  Other property, even though in the name of one or other of them, was regarded as “family property”.  The nature of the property and its value makes unlikely the need to apply for Letters of Administration.  However, it is not doubted that Connie had the primary, perhaps even unassailable, entitlement to administer the estate and, if necessary, to be granted Letters of Administration.

[10] The applicants effectively seek a declaration that they are entitled to possession of a portion (one half) of the deceased’s ashes.  This is sought not simply for them to hold the ashes but so that they might be buried in the traditional homeland.  The applicants feel compelled to make this application by their deeply held belief that the final resting place for Robert’s remains should be the place of his tribal ancestors.  Until the remains are so returned “his spirit will stay with his remains, waiting.  His spirit will not rest until he comes home, where he will be free and at peace.”[2]  These were the words of Maude Doherty for whom Robert was her only son.  She is now elderly and said to be in poor health, though her health status has not been the subject of any medical report placed before me.  Her belief that Robert’s spirit is “confined and isolated” causes her distress.  Of the other applicants, Robert’s sister Gina expressed a similar view as follows:-

“It is my belief, as with other Maori, that Robert’s spirit will stay confined with his remains until such time as they are returned to Robert’s whanau urupa (family burial ground).  Only then will Robert’s spirit be free and at peace with our tribal ancestors, and able to watch over the living members of our tribe and future descendants. There is no other way that Robert’s spirit can be at peace, and every day that this is delayed is painful for me.”[3]

[11] Robert’s sister Paula said that “even a portion of his ashes is sufficient to allow his spirit to be released in the whanau urupa (family burial ground) and reside forever with his ancestors and forever be accessible to his living descendants”.[4]

[12] In support of these beliefs the applicants read the affidavit of William Aston, a tribal elder of the Ngati Porou tribe.  He did not know Robert or the other members of the family.  Objection was properly taken to much of his affidavit where it referred to the personal beliefs of others.  No regard has been had to those matters.  But underpinning of the general tenet concerning the link with ancestry and the family resting place, he expressed in the following terms:-

“Lineage and genealogy is of the utmost significance to us.  It is significant in life as in death.  Upon death, to lie with one’s ancestors is to continue the lineage.  This unites the newly dead with their ancestors, it unites all of the dead with the living and it ensures that future generations will also understand their ancestry and that our genealogy will remain intact.”[5]

[13] I have no doubt that the beliefs expressed by the applicants are genuinely held by each of them.  The substance of those beliefs is shared by Connie but not, it seems, with the same level of urgency.  She said –

“I understand the need for Robert’s ashes to be returned to New Zealand.  I have the same needs and beliefs.  However, I do not believe that it needs to happen straight away and I certainly don’t believe that Robert’s ashes should be split in half to do it.  As far as the children go, one of the reasons that I do not want to take Robert’s ashes back to New Zealand immediately is because I want the children to be old enough to appreciate it when it does happen.  It is because I do attach importance to these things I want to wait until my children are older.”[6]

Her focus is thus upon the importance of Robert’s children to be aware of and to participate appropriately in the burial ritual.  The emphasis on future generations adopting these traditional beliefs is a consistent theme in the wishes of the parties.

[14] The evidence discloses some conflicts between the applicants and Connie about the requests made for the return of Robert’s ashes and conflicts between other deponents about Robert’s wishes.  It is not necessary to resolve these conflicts for reasons which will emerge herein.  Accepting that Connie is genuine in her saying that she will act in accordance with her stated intentions, the issue between the parties comes down to one of timing of the return of Robert’s ashes for burial in New Zealand and whether to overcome such delay, the ashes ought to be divided.

Jurisdiction

[15] It is not disputed that the Court has a role in resolving disputes of this kind.  The application requires a determination of a person’s rights as to possession of the ashes of a deceased.  In this regard, as will be seen from the authorities to which I will soon refer, the Courts have undertaken the task in a variety of circumstances.  It is sufficient to note that as described by the majority judgment (Mason CJ, Dawson, Toohey and Gaudron JJ) in Ainsworth v Criminal Justice Commission[7]:-

“It is now accepted that superior courts have inherent power to grant declaratory relief.  It is a discretionary power which “[i]t is neither possible nor desirable to fetter…by laying down rules as to the manner of its exercise.”  However, it is confined by the considerations which mark out the boundaries of judicial power.  Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions.”

It was accepted also by Byrne J in Leeburn v Derndorfer[8] that “it is well established that the Court has the power to intervene in order to resolve disputes as to who is to undertake the task of disposing of the body and as to the manner and place of disposition.” I am satisfied that the applicants as close family members have a special interest that gives them the necessary standing to make this application.

Submissions

[16] The applicants acknowledge that the disposition of the dead body and, as here, the ashes remains is primarily the responsibility of the executor/administrator.  But this is simply a “sensible, practical prima facie test”[9].  They submit that the executor is expected to consult with interested parties and not exercise his/her power so as to exclude friends and relatives from expressing their affection for the deceased in a reasonably appropriate manner.  Relevant to this inquiry are spiritual, religious and cultural factors where they arise.  The applicants argue that, by reason of her own interests in delaying the burial of the ashes, Connie ought, in the proper exercise of her discretion, to divide the ashes to meet the wishes and expectations of the applicants.

[17] Mr Patterson, appearing for Connie, submits that either as the potential administrator of Robert’s estate or as his surviving spouse, she has exclusive right to possession of the ashes.  He argues that whilst the rights of possession in respect of a corpse is for the purpose of burial once the remains become ashes there is in the executor exclusive rights of possession.  He relied upon remarks in Robinson v Pinegrove Memorial Park[10] and referred also to Doodeward v Spence.[11]  Secondly he submitted that if the Court is inclined to consider cultural issues, as there is no property in the ashes and no beneficiaries, there can be no trusteeship of the kind identified in Leeburn v Derndorfer (supra).  Thirdly, Mr Patterson argued that by reason of s 11 of the Cremations Act 2003 Connie alone was entitled to receive the ashes because she was the person who applied for the cremation and paid for the service to be carried out. 

[18] This latter point can be disposed of summarily.  Section 11 relevantly provides that “the person in charge of the crematorium must not dispose of the ashes remaining after a cremation except in accordance with any reasonable written instructions of the applicant” (here Connie).  The statutory provisions allow the crematorium owner to dispose of ashes for which such instructions are not received within one year.  By subsection (5) the statutory provision overrides the common law to the extent that it qualifies the personal representative’s right to decide how to dispose of the deceased person’s human remains.  The argument ran that these provisions gave a complete legislative direction as to how the cremated remains of a deceased person’s are to be dealt with and do not contemplate the exercise of discretion by the Court provided the written instructions were “reasonable”.  That argument in my view misconceives the purpose of s 11 which is to control the actions of those in charge of the crematorium by preventing the unauthorised disposal of the ashes.  The penalty for breach of subsection (1) indicates this.  Otherwise the section regulates the contractual arrangements between the crematorium and the person who applies for the cremation to be undertaken.  Such contractual right is subject to the right of the executor to decide how, ultimately, a deceased person’s remains shall be disposed of.[12]  I should turn now to the legal principles which determine the remaining issues of whether the ashes should be divided and what should be the timing of their disposition.

Legal principles

[19] Because Connie has a primary entitlement to Letters of Administration and because as well she is Robert’s spouse she has, in respect of disposing of Robert’s remains, the “right of burial”. This right includes making the choice of cremation as the manner of disposing of the body. Leeburn v Derndorfer (supra).  The determination of the right of burial also applies to the decision for cremation which Young J held to be “equivalent to burial”. Smith v Tamworth City Council[13].  In the case of burial there is no continuing right in respect of the remains.  In the case of cremation rights in respect of the possession and disposal of the ashes are less definite. 

[20] In the case of intestacy the apparent entitlement to Letters of Administration is “one matter of primary importance but it is not necessarily of conclusive importance”.  Dow v Hoskins[14].  The extent to which cultural considerations might conflict with the intentions of the potential administrator and the practical consequences in resolving these conflicts, has been considered in a number of cases.  In Jones v Dodd[15] Perry J (with whom Millhouse and Nyland JJ agreed) said at (p 336):-

“The proper approach…is to have regard to the practical circumstances, which will vary considerably between cases, and the need to have regard to the sensitivity of the feelings of the various relatives and others who might have a claim to bury the deceased, bearing in mind also any religious, cultural or spiritual matters which might touch on the question.”

[21] In Dow (supra), Cummins J considered differences in approach that had arisen in cases before the Supreme Court of the Northern Territory (Calma v Sesar & Ors)[16] and in the Supreme Court of Victoria (Meier v Bell)[17].  Cummins J concluded that in establishing the “right of burial” the “administrator test is the proper prima facie test but not to the necessary exclusion of cultural or other factors where such factors substantially arise on the evidence before the court”.[18]

[22] The character of the rights which might be held in respect of the ashes remains of a deceased person was also considered by Byrne J in Leeburn v Derndorfer (supra).  Having reviewed cases dealing with the executor’s rights with respect to the disposal of a deceased person’s body, Byrne J said:-

“[15]…The executors do not in any sense have any right of property in the body of the deceased; theirs is the right to possession of it for the purpose of burial or other lawful disposition. As will be seen, a like right resides in them with respect to the cremated ashes of that body…

[16]This is not, however, the end of the matter.  Although the cases make it clear that the decision as to the manner and place of disposition of a dead body is entrusted to the executors, they do admit qualifications.  It is possible in certain circumstances for the court to intervene on the application of an interested party.  The executors are expected to consult with those interested and they may not exercise this power so as to exclude friends and relatives from expressing their affection for the deceased in a reasonable and appropriate manner.  Likewise, although the executors ought to have regard to the express wishes of the deceased and to the cultural and spiritual values of the deceased, they are not bound to give effect to them, for it is not competent for a person to dispose of his or her own body by will or otherwise.”[19]

[23] In Robinson v Pinegrove Memorial Park Ltd (supra) Waddell CJ in Eq., was concerned with a contest between the executor and the deceased’s son for possession of his ashes remains.  The deceased was survived by his widow who opposed the son’s intention to divide the ashes so as to leave one half of them in Australia whilst taking the other half to England.  The widow in accordance with the deceased’s wishes, wanted to take all the ashes to England to be scattered in the place nominated by the deceased.  He considered that the executor’s right to possession of the ashes was the equivalent of his right to possession of the unburied body.  He went on to say:-

“…it is my view that an executor has a right to possession of the ashes of a deceased who has been cremated to direct how they shall finally be disposed of and that this right will be supported by a court, particularly where the executor intends to act in accordance with the wishes of the deceased.”[20]

[24] In Doodeward v Spence (supra), the High Court were concerned with the preserved remains of a still born child which had two heads on one body.  The remains were kept by a doctor and were later sold and then used as a grotesque travelling exhibition. On the question whether there were rights of possession in the person holding the remains.  Griffith CJ said (at p 414):-

“If, then, there can, under some circumstances, be a continued rightful possession of a human body unburied, I think, as I have already said, that the law will protect that rightful possession by appropriate remedies.  I do not know of any definition of property which is not wide enough to include such a right of permanent possession.”

Higgins J after considering a number of English and American cases said:-

“From first to last, I can find no instance of any Court asserting any property in a corpse except in favour of a person who wanted it for purposes of burial, and who by virtue of their close relationship with the deceased might be regarded as under a duty to give the corpse decent interment.”

Higgins J declined however to acknowledge any right of possession in the plaintiff in that case. 

[25] Neither of these cases supports the argument that an executor or a surviving spouse has any exclusive proprietary right in the ashes of the deceased.  Even the right to possession is qualified in the way identified by Byrne J in Leeburn v Derndorfer (supra) as follows:-

“Ashes which have in this way been preserved in specie are the subject of ordinary rights of property, subject to one possible qualification.  In this way, ownership in the ashes may pass by sale or gift or otherwise.  The only qualification, which, if it exists, may require some working out, arises from the fact that the ashes are, afterall, the remains of a human being and for that reason they should be treated with appropriate respect and reverence.

The next question is as to the legal interest of the executors in these ashes.  They do not form part of the estate of the deceased so that they do not pass under the will, any more than a testator’s mummified body.  It seems to me that the interest of the executors in the ashes is that of a trustee.  Again, adapting the analogy of Waddell CJ in Eq in the Robinson case, the executors as trustees hold the ashes for the purpose of disposing or dealing with them in a way that seems to them to be appropriate having regard to any direction of the deceased in the will or otherwise and having regard to the claims of the relatives or others with an interest.”[21]

[26] I respectfully adopt these remarks of Byrne J.  Moreover, it seems to me that when the executor chooses to retain possession of the ashes rather than disposing of them in some final way the obligation to deal appropriately with them is a continuing one.  This would give rise to a need to consider any significant change in circumstances.  In the end result I reject the argument that Connie has exclusive proprietary rights in Robert’s ashes.

[27] The argument raised against there being a trust by reason of the lack of property in the ashes and the lack of beneficiaries also fails.  In general terms, a trust exists “when the holder of a legal or equitable interest in certain property is bound by an obligation cognisable and enforceable in equity, to hold that interest not for his own exclusive benefit but for the benefit, as to the whole or part of such interest, of another person or persons, or of himself and such other person or persons, or for some object or purpose permitted by law”.[22]  The nature of the “legal and equitable interests” does not admit of ready definition.  See Equity: Doctrines and Remedies 3rd Ed at [401]:-

“An examination of the nature of equitable estates and interests demonstrates that in equity there is no system or hierarchy of property concepts which, once comprehended, is a sufficient guide for all purposes and at all times.”

But a right to possession, even one qualified by obligation, is undoubtably an interest which can be claimed and which can clearly be the subject matter of a trust.

[28] As to the suggestion that the beneficiaries are uncertain, the beneficiary principle requires that there be someone who can enforce the trust.  But in the case of a purpose trust (as this is) it is sufficient that the trust is “directly or indirectly for the benefit of ascertainable beneficiaries”.  Per Goff J Re Denley’s Trust Deed.[23]  As mentioned in para 15 above the beneficiaries of this trust are directly ascertainable being the relatives of Robert with an interest in the disposition of the ashes. Accordingly, I am satisfied there is a trust which calls for the trustee to have regard to the claims of relatives and which may be enforced by the Court.

Conclusions

[29] In the circumstances of this case it seems to me that I should regard Connie as a person who is in a position equivalent to that of an executor under the will.  In that position, she is entitled to hold the ashes as trustee for the purpose of disposing of or dealing with them in a way that is appropriate. 

[30] In dealing with the ashes Connie is required to have regard to the claims of relatives or others with an interest.  She has stated how she proposes to deal with the ashes. She is in favour of returning the ashes, undivided, to Robert’s homeland for burial in accordance with his cultural traditions.  To that extent, Connie’s intentions coincide with the wishes of the applicants. Were they entitled to have possession of Robert’s ashes, they would dispose of them in the same way.  They seek division of the ashes only for the purpose of achieving the burial of some part of them at some earlier definite date.   The division of the ashes remains is a common enough practice.  It is quite acceptable to some people but it is abhorred by others.  Much depends on the views of the individuals involved in a particular case. 

[31] Connie is against dividing the ashes.  That appears to be based on personal preference and I am satisfied that her view is genuinely held.  To do so would also lead to separate burial rituals in presumably the same tribal homeland but perhaps years apart.  In personal terms division of the ashes would be distressing for Connie and the children.  It would, I expect, be a less desirable option for the applicants,  so long as the burial of the ashes intact could be undertaken at a reasonably proximate time.  In the present circumstances, I am not prepared to order that the ashes be divided.

[32] Thus, it is the timing of the act of burial of the ashes which is of importance to the parties.  In this regard Connie, by leaving the performance of her intention for some indefinite and indeterminate time, has not fully considered the interests of the applicants, particularly those of Robert’s mother.  As a trustee, she has to strike a balance between those interests and the interests of her own children in having the capacity to participate meaningfully in the ceremony.  The importance of children doing so is demonstrated by frequent reference to future generations in the quotations which I have included in paragraphs  [10] – [13] above.

[33] Connie’s reluctance to fix a time when she believes the children could meaningfully participate in the ritual of burial is understandable.  She and the children need time to grieve their loss.  The presence of Robert’s ashes close to them will be an important feature of that grieving process.  So too, ultimately, will be the closure achieved by completing the attended ritual of the return of the ashes to the family burial ground.  But if she can address the wishes of Robert’s mother and sister by fixing a date for further consideration or by suggesting a process whereby those wishes and the children’s needs can be assessed then her actions as trustee will become more transparent.

[34] The difficulty for the court in resolving these deeply personal issues was aptly described by Doyle CJ in Dodd v Jones[24] as being “insolvable in one sense.  It is impossible in any realistic sense to weigh the competing claims and arrive at what one would truly call a legal judgment.”  My concern is that the parties here have not allowed sufficient time for themselves to come to terms with their loss before confronting these issues.  In circumstances where a person’s remains await burial, the court must necessarily decide questions speedily.  Here there is the opportunity for further consideration when the respective legal position of the parties is understood and their emotions less raw.  I propose therefore to make declarations as outlined in these reasons and give directions that Connie, as trustee, give further consideration to the timing of her intentions for disposing of the ashes.  That consideration should be undertaken within 12 months from this day.  I have chosen this period as a reasonable time for the early effects of grieving to have passed.  It may well be that earlier consideration can be undertaken.  It may also be that a final decision about burial is not possible at that time.  What is required of Connie is to act as trustee by having regard to the legitimate claims of Robert’s other relatives.

[35] I make the following orders –

Orders

1. I declare that the first respondent, Connie Doherty, is entitled to possession of the whole of the ashes remains of Robert Doherty (deceased) as trustee for the eventual disposing of the ashes by burial in the deceased’s tribal homeland.

2. I direct the first respondent within 12 months from today to give further consideration to the likely timing of such burial and to advise interested family members of those considerations.

3. I give to all parties liberty to apply upon giving five business days notice to each other party.

4. I reserve the question of costs to allow the parties to make written submissions on this question within 14 days from the date hereof.