By Kate Donnan
At our briefing event held recently in our Sydney office, Kate Donnan gave an update on trends in the administration of estates and how we are collaborating across our estate administration, litigation and planning processes to adapt to them.
Digital Assets
We are seeing digital assets have an impact on estate administration. It is not uncommon to find that an executor does not have access to the necessary wallets and keys to enable them to ascertain values or transmit digital assets, particularly cryptocurrencies, to beneficiaries. There are also increasing disputes about what is to occur with people’s social media accounts after they pass away with some family members wanting pages to be deleted and others wanting them memorialised.
At de Groots, we seek to ensure that if our clients have any digital assets or wishes about their digital assets, including social media, they are documented as part of their estate planning framework. This provides clients with peace of mind that their wishes will be followed, as closely as practicable, but also ensures that executors have peace of mind when it comes time to administer an estate.
Digital gravesites have increased in popularity in the United Kingdom and typically involve either a Bluetooth beacon or QR card on a tombstone which takes the viewer to a digital memorial. There is currently a trial of this concept occurring in a cemetery in South Australia with one person having the log-in details to moderate any posts or photos shared on the digital memorial.
In the same way that there can be disputes over who has control of a person’s social media, similar disputes may arise in the future over who is the moderator of the digital gravestones. These are the kinds of issues that need to be explored with clients who are preparing or updating their estate planning documents with our team. A further consideration is the cost of such digital gravesites and whether these are a legitimate testamentary expense in line with the person’s station in life. This can potentially be overcome if the testator leaves clear instructions about what they want.
Burial and Cremation Disputes
We are seeing an increase in disputes over burials and/or cremations. Traditionally a lot of these cases arose in respect of persons with Indigenous heritage over differences in ‘Sorry Differences’ for different areas of country, but the cases now appear to include a wide variety of cultures and backgrounds. The decision of Justice Young in Smith v Tamworth City Council [1997] NSWC 197 provides us with the following principles about burial and cremation disputes, and the primacy of the legal personal representative to make these decisions:
- There is an expectation that the legal personal representative will consult with others regarding the burial or cremation of a person, but they are not required to do so; and
- Where there is one or more person with equal ranking to be the legal personal representative, the practicalities to avoid an unreasonable delay will be the deciding factor in any disputes.
Recent Cases
We discussed a number of cases that demonstrate the types of burial and cremation disputes occurring, highlighting the delays, costs and additional distress that can arise.
Re Gosh [2022] VSC 410 involved two brothers who were appointed as executors of their mother’s estate, both agreed that their mother should be cremated but one son wanted the cremation to be delayed pending an appeal to the coroner’s decision. Justice Gorton found in favour of the brother who wanted the cremation to proceed without delay stating “there is a general public interest to be weighed in this case that bodies of deceased persons be treated with respect and cremated or buried reasonably promptly” at [18].
Wang v Jiang (No. 2) [2022] VSC 371 is another Victorian case and demonstrates the costly and time-consuming effects of a dispute over burial or cremation. In this case, which saw a son engaged in litigation with his step-mother over his father’s body, the son filed 6 affidavits and his step-mother a further five resulting in a Court Book of over 1,400 pages just to deal with this single issue.
AB v JB (anonymised) [2022] NSWSC 326 was a tragic case involving the parents of a child who only lived for a few days. There was no need for a grant of representation to be made but both parents would have had equal standing to be appointed administrator. The father opposed the mother’s wishes for a cremation on religious grounds. Justice Sackar made it clear that the dispute was not about “who is or was the better parent or which parent has the least flaws”. His Honour considered the nature of the relationship of the parents, or lack thereof, and noted that the mother had consented to, or at least acquiesced to the baptism of the child. Notwithstanding this, his Honour ultimately found in favour of the mother stating “It is hard to imagine a more intimate connection than that of a mother and child in utero” at [39].
Carr v Carr [2022] NSWSC 166 was not a contemporaneous dispute over burial or cremation but was a judicial review of a decision to refuse an exhumation application. Ms Carr sought approval to exhume the bodies of her husband and son from their graves at Dubbo cemetery so they could be reinterred in a Roman Catholic plot at Wellington Cemetery. The relevant burials occurred in 1966 (husband) and 1981 (son). The exhumations were opposed by Ms Carr’s children, being the children and brother of the deceased persons. At the time of her husband’s passing Ms Carr was a 25-year-old widow with six children aged between 3 months and 7 years. Ms Carr contended that she was overwhelmed at the time and that her mother-in-law arranged the plot in the general section of Dubbo Cemetery. When her son passed away at the age of 17, his death was reported as an Aboriginal death in custody and Ms Carr had no funds available so arranged for him to be buried with his father. Ms Carr subsequently moved to Wellington and wished to have her husband and son buried in a Roman Catholic plot where she too could be buried. Justice of Appeal Leeming held that the refusal of the exhumation did not constitute a judicially reviewable error noting that “the views of close relatives are very significant” and “approval to exhume should be regarded as exceptional, as opposed to something available as of right upon a valid application being made” – at [125 (b)].
Angelopoulos v State of Queensland [2022] QCAT 163 was a Queensland matter heard by Member Browne demonstrating the important role that faith can play in burial and cremation disputes, but again was not strictly a burial or cremation dispute. Mr Angelopoulos’ father passed away and he sought financial assistance under the Burial Assistance Act 1965 (Qld) to cover the costs of his father’s burial. Mr Angelopolous wished to give his father a traditional Greek Orthodox funeral as well as arranging for viewings of the body in line with cultural and religious views. The Government refused to provide funds to cover these wishes under the Burial Assistance Act 1965 and Mr Angelopoulos brought a claim for discrimination on religious grounds. Fortunately for Mr Angelopoulos, members of his father’s congregation kindly donated sufficient funds to enable a traditional Greek Orthodox funeral to be arranged, but there was a delay of 20 weeks due to the dispute. Member Browne ultimately found that the refusal to cover the additional costs was in line with the statue and did not amount to unlawful discrimination.
Takeaway Messages
The death of a loved one is already a stressful and sad time, and disputes in respect of the administration of an estate or the burial/cremation only add to the stress. To avoid disputes arising, we take a collaborative approach across our planning, administration and litigation departments sharing experience and knowledge. Our goal is to prepare thorough and robust frameworks that document our clients’ wishes providing comfort to the client and guidance to their executors to ensure that we provide as much certainty as possible that wishes are fulfilled with the least likelihood of disputes.
