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Who can arrange the Funeral?

Johnson v George (2018) QSC140 is an interesting decision in the Queensland Supreme Court where a dispute arose in relation to a funeral.  The deceased was an Aboriginal man who died without a Will leaving nine adult children.  He had no spouse.  His estate was small. Agreement could not be reached for cultural reasons as to how the funeral would proceed.     

Three of the children wanted their father to be buried in Charters Towers.  Four children wished the burial to take place “in country” at Townsville.  The proceedings were brought by one of the deceased’s son.

The deceased was an Elder of the Ulgurba people, native to the Magnetic Island region.  The deceased was involved in a Native Title claim regarding Magnetic Island.  However, the applicant stated that the deceased did not seem interested in cultural issues regarding Magnetic Island and spent a considerable amount of time in Charters Towers where he both worked and lived.  Seven of his children were born at Charters Towers.  He also had friends at Charters Towers.

In Queensland Section 6 gives the Court jurisdiction to determine burial disputes where there is no executor named in a Will who otherwise has the responsibility of arranging the funeral and burial of the deceased.  

Where there is no Will, the person entitled to apply for Letters of Administration is responsible for the arrangement of the funeral and burial.  Therefore in this case the nine children of the deceased equally shared the right to arrange the funeral and burial of the deceased.  As they could not agree, then the Court had to make a decision.  The Court considered other decisions surrounding similar circumstances in other States and finally made Orders that the body of the deceased be released to the applicant for the purpose of a funeral at Townsville and a subsequent burial at Charters Towers, Queensland. The Court directed that the body of the deceased be present at the funeral.

In NSW, Section 44 of the Probate and Administration Act is similar to Section 6 of the Succession Act in Queensland.  Therefore, if there is a dispute within the family of the deceased as to how the funeral and burial should proceed, then the Executor makes the decision.  Therefore it is important that the Willmaker makes his/her Executor aware of his/her wishes in relation to the funeral and burial (or cremation) which he or she would like to take place after death. 

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