Funeral and Burial Instructions: Consultation Paper

6. Case studies

Introduction

6.1 The purpose of this chapter is to provide a brief overview of the most common types of funeral and burial disputes, and to encourage people who have been involved in a funeral and burial dispute to share their experiences with the Commission.^[1]

6.2 Funeral and burial disputes can occur in any family. However, as discussed in Chapter 1, the cases that have come before Australian courts suggest that families are more likely to have disputes, or are perhaps less able to resolve disputes, in certain circumstances. These include where there is already conflict within the family, where a father or mother has re-partnered after separating from the person with whom they had children or where family members come from different cultural or religious backgrounds.

6.3 Although there are no Australian court cases involving a lesbian, gay, bisexual, transgender or intersex (LGBTI) deceased, the Commission was told during the course of its preliminary investigation that this is an issue that affects LGBTI people whose families have not fully accepted their sexual orientation, gender identity or intersex status.

Families in conflict

6.4 As Heather Conway and John Stannard have observed, ‘Burial disputes are a classic example of death fracturing family bonds or, more often, acting as a catalyst for the implosion of relationships which were already strained.’^[2]

6.5 In Leeburn v Derndorfer, two sisters buried their father’s ashes at a cemetery of their choosing without informing their brother.^[3] Their brother was upset that he had not been consulted and wanted the ashes dug up and split three ways so that he could bury his portion of the ashes at a cemetery closer to his home. The sisters felt that dividing the ashes was ‘disgusting, even sacrilegious’.^[4] Justice Byrne decided that, as the ashes had been at the cemetery for four years, and as this location had been selected by two of the deceased’s three executors (the third being the deceased’s son), the ashes should remain where they were.^[5]

6.6 In reaching this conclusion, Justice Byrne expressed an apprehension ‘that the division between [the siblings] on this matter represents a manifestation of some more deep-seated hostility which I cannot resolve.’^[6] Justice Byrne further observed that, in cases like this, the tension between the deceased’s wishes, the bereaved’s wishes and other cultural, social and religious factors made resolving funeral and burial disputes difficult, ‘especially where they are based on feelings which are strongly held at a time of great emotional stress and which are difficult to justify, or even explain, in any rational way’.^[7]

Blended families

6.7 Manktelow v The Public Trustee & Ors involved a dispute between the deceased’s partner of ten years and the deceased’s three children from an earlier marriage. The deceased was living in Perth with her partner at the time of her death, and had stated in her will that she wanted to be buried, without identifying where. Her partner wanted to bury her in Perth. Although her children initially wanted to cremate her in South Australia, they later told the court that they wished to bury her in South Australia. According to one of the deceased’s daughters, her mother’s partner was hostile towards her mother’s family and had damaged relations between them.^[8]

6.8 Justice Hasluck held that the body should be buried in Perth because, among other reasons, the law favours the wishes of a de facto partner over the wishes of children, transferring the body to South Australia may result in an unreasonable delay in the deceased’s burial, and transferring the body to South Australia may amount to an unjustifiable expense given the small size of the estate.^[9]

Cross-cultural families

6.9 As stated above, almost half of the cases that have come before Australian courts have involved Aboriginal deceased.^[10] Jones v Dodd and Dow v Hoskins, both of which were discussed in Chapter 3, involved a dispute between the birth family of an Aboriginal deceased and the deceased’s non-Aboriginal partner.^[11]

6.10 Calma v Sesar involved a dispute between two Aboriginal parents from different parts of Australia.^[12] While the deceased’s mother wanted to hold a Roman Catholic funeral and burial in Darwin, the deceased’s father argued that his culture dictates that the dead should be buried in their homeland and that the homeland of the deceased was Bardi country in Western Australia. After deciding that he could not take competing spiritual or cultural values into account, Justice Martin found in favour of the mother as the deceased’s body was in Darwin, arrangements had already been made for the deceased’s burial, and he found no reason to interfere with these arrangements.

6.11 Tufala v Marsden concerned a deceased woman from New Zealand whose parents were from the Tokelau Islands, a Polynesian island group near Samoa. The deceased’s husband wished to cremate his wife in Brisbane, which is where they were living at the time of her death. The deceased’s birth family wished to bury the deceased in New Zealand in accordance with Tokelauan custom. Before the judge handed down his decision, the parties agreed that the husband would hold a funeral in Brisbane, before transporting the deceased’s body, at the birth family’s cost, to New Zealand.^[13]

6.12 When granting the application to withdraw the application to restrain the husband from cremating the body, Judge Atkinson observed that the deceased’s husband had the right to dispose of her body and that the deceased had expressed a wish to be buried in her family’s plot in accordance with Tokelauan custom. The judge continued:

The Tokelauan traditions for burial are quite detailed and involve the deceased’s body being given back to the family and placed on traditional mats, the body being prepared in accordance with their customs and for at least two days the relatives coming and sitting around the body to grieve and holding a family mass and praying together. After the grieving process the body is taken to a church. The deceased’s body is buried and not cremated. It is important in Tokelauan tradition that the deceased is not buried alone. The deceased and her husband had no children, and in accordance with her custom, she would be buried in the family plot, otherwise her family fear she will have a restless spirit.^[14]

Families with LGBTI members

6.13 The Commission does not know of an Australian case in which the sexual orientation, gender identity or intersex status of an LGBTI deceased contributed to a dispute among survivors about how to dispose of the deceased. However, the Commission was advised anecdotally that such disputes do occur, and the impact can cause ongoing harm to the memory of the deceased as well as to survivors.^[15]

6.14 In a case that came before a court in New York, the deceased’s partner of five years challenged the right of the deceased’s mother and brother to the deceased’s body. While the mother and brother wanted to hold an Orthodox Jewish funeral, the partner wanted to hold a small ceremony in the home he had shared with the deceased and then cremate the body, in accordance with the deceased’s oral wishes.^[16] According to the partner, the deceased had actively distanced himself from his Jewish heritage, was agnostic and was estranged from his mother. While the court confirmed that the wishes of the deceased regarding their disposal are to be given primacy over all others, and indicated that it may thus have awarded the body to the partner so that he could carry out the deceased’s wishes, the parties agreed to cremate the body and divide his ashes before the court handed down its decision.^[17]

Question

1 If you have been involved in a funeral and burial dispute, can you tell us about your experience?

1. The Commission’s policy on confidentiality in relation to submissions is on page vi. Its confidentiality policy in relation to consultations can be found here: <https://www.lawreform.vic.gov.au/about-us/policies/consultation-meeting-policy>.

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2. Heather Conway and John Stannard, ‘The Honours of Hades: Death, Emotion and the Law of Burial Disputes’ (2011) 34 UNSW Law Journal 860, 862.

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3. Leeburn v Derndorfer (2004) 14 VR 100.

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4. Ibid 102.

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5. Ibid 108.

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6. Ibid 102.

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7. Ibid.

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8. Manktelow v The Public Trustee & Ors [2001] WASC 290.

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9. Ibid [26], [31].

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10. See [1.18].

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11. See [3.11] on Jones v Dodd (1999) SASR 328; and [3.12] on Dow v Hoskins [2003] VSC 206.

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12. Calma v Sesar (1992) 2 NTLR 37.

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13. Tufala v Marsden & anor [2011] QSC 222.

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14. Ibid 3–4.

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15. Information given to the Commission by an LGBTI advocate (19 August 2015).

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16. Stewart v Schwartz Bros.-Jeffer Mem. Chapel 159 Misc.2d 884, 606 N.Y.S.2d 965.

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17. Ibid 889-890.

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