Here, an application was made by one of the deceased’s sons in a dispute between nine siblings as to where to bury the deceased and the location of the funeral. The deceased was an Aboriginal man who died intestate with a modest estate. The case is interesting because of his Honour’s consideration of the relevance of cultural concerns applying the criteria outlined by Nicholas J in South Australia v Smith  SASC 64.
14 June 2017
The applicant sought to have the body of his father released to him for the purposes of a funeral and subsequent burial at Charters Towers, Queensland, in addition to an order entitling him to withdraw a sum of $8,000 from the deceased’s bank account to meet the associated expenses. The deceased was an Aboriginal man and had a very modest estate of $10,000. Several of the applicant’s siblings actively opposed the application citing cultural reasons, instead seeking to arrange the funeral and have the burial at Townsville. , .
Section 6 of the Succession Act 1981 enables a court to determine burial disputes and to “make all such declarations and to make and enforce all such orders as may be necessary or convenient”. . In cases of intestacy, according to the common law, the person entitled to take letters of administration in priority is responsible for the arrangement of the funeral and burial: see Tufala v Marsden  QSC 222, ; Roma v Ketchup  QSC 442, . In this instance, those persons who were entitled to take out letters of administration were the deceased’s nine children. Given the “deep divide” among them regarding burial arrangements, , it fell to the court to adjudicate.
This was a special case since integral cultural issues arose. Having regard to the observations of Campbell J in Darcy v Duckett  NSWSC 1756, in which a similar burial dispute was determined, his Honour proceeded on the basis that where two or more persons have an equally ranking privilege, the practicalities of burial without unreasonable delay will decide the issue. Important considerations also include common law principles and practical considerations; any relevant cultural, spiritual and religious factors; and the “unique factual context of the dispute itself”: see South Australia v Smith  SASC 64, 255 . In considering the matter, his Honour adopted the criteria outlined by Nicholson J in South Australia v Smith  SASC 64, as follows:
(a) who might be entitled to obtain letters of administration in the event that such an application were to be made;
(b) the Aboriginal cultural matters and concerns raised in the evidence;
(c) the deceased’s own wishes; and
(d) the wishes and sensitivities of the living close relatives. (at –, ,  and ).
His Honour also had regard to the need for timeliness together with costs and logistics of the proposed burials. .
Having regard to all of the competing circumstances, –, his Honour formed the view that the most appropriate course was to order pursuant to s 6 of the Succession Act 1981 that:
- the body of the deceased be released to the Applicant for the purpose of a funeral at Townsville and subsequent burial at Charters Towers, Queensland; and
- the Applicant be responsible for the arrangements for the funeral and burial. .
In making that order he acknowledged that the matter was not one where it would be possible to satisfy all of the family members, and that his decision would indeed cause some upset.
A de Jersey