Disposition of a deceased’s body – rights and duties
Who has the right to deal with a deceased’s body?
The legal position regarding the disposition of a deceased’s body is well established. An executor under a will has the legal right to custody and possession of the body until burial (R v Fox [1841] 2 QB 246). Where no will exists, it will be the administrator appointed by the Court. If there are multiple executors or administrators and they disagree on how the body should be dealt with, the Court may have to intervene.
In Victoria, the Court has recently reaffirmed that where no executors are appointed and where it is impossible to identify the person with the best legal claim to an appointment as administrator, the Court will step in to identify a person to whom it will direct power and responsibility over the disposal of the body (Re Ghosh [2022] VSC 410).
The disposition of a body must be undertaken in a caring and respectful manner, being mindful of religious and cultural issues (Keller v Keller (2007) 15 VR 667).
What happens if nobody deals with the body?
In the last six months, there have been two cases where the Victorian Supreme Court has been required to examine this exact issue.
The first case was State Trustees Ltd & The Royal Hospital Melbourne v Wu, Dr Gang [2022] VSC 756.
In this case, the son of the deceased was the only known surviving next of kin. The deceased had not left a will.
State Trustees Ltd and The Royal Melbourne Hospital made an application for the body to be removed from the hospital’s mortuary facility. The body had been there for over three months, despite the fact that the temporary storage at the hospital is usually no more than a week or two. The body was at an advanced stage of decomposition.
The deceased’s son had an interest in neurology, artificial intelligence and future advanced technologies for his mother’s recovery. He appeared to regard his mother as if she were still alive. The Court was satisfied that the son was unable or unwilling to perform his duty to arrange for the disposition of the body.
In these circumstances, the Court would usually look to another family member to take charge of the disposition of the body. In this case however, there was no other known family member, and the Court therefore made orders to authorise State Trustees Ltd to make the arrangements to dispose of the body.
The second case was Eastern Health v Bruinink [2022] VSC 772.
The deceased died at Maroondah Hospital and remained in the hospital’s mortuary for almost 2 years.
The deceased’s daughter was named as the executor of the deceased’s will. The will recorded the deceased’s wish to be cremated. The death certificate recorded the deceased’s cause of death as aspiration pneumonia, congestive heart failure and Alzheimer’s disease. The daughter made a request to the Coroner’s Court to investigate the death, to which the Coroner found that it was not a reportable death. The daughter appealed this decision, which was later dismissed by the Court.
The hospital made several attempts to move the body to a funeral parlour. These attempts were either refused by the daughter or by the funeral directors due to the state of the body’s decomposition. The hospital purchased a coffin for the deceased, to preserve the deceased’s dignity and reduce health risks to staff.
It took six staff members wearing full PPE to place the body in the coffin. The hospital’s mortuary has space for only four bodies. The hospital wrote to the daughter offering to pay the funeral costs, which was rejected.
The daughter claimed that:
She witnessed a fatal medical event at the hospital on 9 January 2021;
Her father did not die on 10 January 2021, as there was no precise time of death on the death certificate;
She had concerns about the whereabouts of the remains and state of decomposition;
She feared that the remains in the coffin at the hospital were not her father’s but that of another patient, who was in the bed opposite her father;
The hospital denied her the right to advocate for her father whilst he was alive and after his death;
The hospital was determined to destroy her father’s body to avoid further investigation.
The Court decided that the daughter was not ready, willing or able to organise the burial or cremation of the body.
Therefore, the Court ordered that the hospital be given authority and responsibility to organise the deceased’s cremation in accordance with the wishes within the will.
How can you ensure your body is dealt with properly once you have died?
One of the ways to ensure your wishes regarding your body are recorded is through your Will.
We can assist you to include a clause detailing any wishes you may have about your body. Having an up-to-date will also means that the right people will eventually make decisions regarding your body, and your estate generally.
It is important that you communicate with your family members or loved ones about your wishes regarding the disposal of your body.
You may wish to be buried with loved ones, or for your remains to be cremated and spread in a place of significance, or even alternatives like being transformed into a memorial diamond, donating your body to medicine & science, or you may even wish to go out with a bang by having your ashes added to fireworks! Whatever your preference, it is important that you make sure these wishes are known. It can be difficult to talk with your family and friends about this topic, but doing so might save them a lot of hardship in the future once you have passed away.
To discuss this further or for more information please contact:
Alannah Matchett
Graduate Lawyer
T 03 5225 5250
amatchett@ha.legal
Deborah Anderson
Special Counsel
T 03 5225 5235
danderson@ha.legal
Daniela Pavlovic
Principal
T +61 3 5225 5227
E dpavlovic@ha.legal
