Under section 109 of the Public Health Regulation 2022 the cremation authority must either:
- give the cremated remains to the applicant; or
- dispose of the cremated remains in a burial ground adjoining the crematorium; or
- otherwise retain or dispose of the cremated remains.
Who controls the ashes of the deceased?
While the ashes are to be given to the applicant, the executor has both the first right to custody of the ashes and a duty to dispose of the body.
The executor:
- is expected (but not required) to consult with any interested friends and/or relatives;
- may not exercise their right so as to exclude friends and relatives from expressing their affection for the deceased in a reasonable and appropriate manner; and
- should consider the express wishes and the cultural and spiritual values of the deceased (but the executor is not required to follow the deceased’s wishes because the Court has held that it is not competent for a person to dispose of their own body by will or otherwise).
What if there is a dispute?
Where there is a dispute over the control of the ashes, the executor’s decision is usually final.
However, in certain circumstances the NSW Supreme Court may intervene on the application of an interested friend or relative.
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