Review of the Law in Relation to the Final Disposal of a Dead Body

Introduction

1. 
   The Commission’s terms of reference require it to review the duties and rights associated with the final disposal of a dead body including, but not limited to:¹
   

(a) whether, and to what extent, a comprehensive legislative framework is required; and

(b) whether any new legislation should provide for an easily accessible mechanism to deal with disputes and, if so, the nature of such a mechanism.

2. 
   In undertaking its review, the Commission is to have regard to the following matters:
   
   • 
     the fact that at common law the executor (or person having the highest claim to administer the estate of the deceased person) has the duty and the right to arrange for the final lawful disposal of the deceased person’s body including, probably, the disposal of the deceased person’s ashes; and
     
   • 
     the fact that at common law the wishes of the personal representative or person who has the duty and the right to dispose of the body are regarded as paramount with respect to the disposal; and
     
   • 
     the extent to which this common law position is or may be amended by the Cremations Act 2003 and the current provisions governing cremations contained in the Coroners Act 1958,² or by any other Queensland laws; and
     
   • 
     the many and varied cultural and spiritual beliefs and practices in relation to the disposal of bodies; and
     
   • 
     the fact that from time to time questions arise regarding:
     
     • 
       whether a person who may have caused the death be allowed to arrange for the final disposal of the body;
       

…

• 
  the fact that from time to time disputes arise regarding:
  
  • 
    to whom a body is to be released (for example by a hospital or, where relevant, a coroner) for final disposal; and
    
  • 
    the method of final disposal of the body in a particular case; and
    
  • 
    the place for the final disposal of the body or ashes. (note added)
    
1. 
   The main issue in this chapter is whether there is a need for legislative reform of the current common law approach for determining who has the legal entitlement to decide the method and place of the disposal of the human remains³ of a deceased person. In this context, the Commission has considered whether there should be a legislative scheme for determining who should hold the right to control the disposal of the human remains of a deceased person.
   
2. 
   It also examines whether:
   

• 
  a person who is, or may be, criminally responsible for the death of a deceased person should be able to exercise the right to control the disposal of the human remains (or ashes) of a deceased person;
  
• 
  jurisdiction to hear and determine disputes about the exercise of the right to control the disposal of the human remains (or ashes) of a deceased person should remain with the Supreme Court of Queensland;
  
• 
  section 8 of the Cremations Act 2003 (Qld), which prohibits the cremation of the human remains of a deceased person if specified people object to the cremation, should be retained or omitted; and
  
• 
  a person who holds the right to control the disposal of the human remains of a deceased person should be under a statutory duty to consult with other persons in exercising that right.
  

5. 
   Except for the specific matters mentioned in the previous paragraph, this chapter does not deal with the disposal of ashes. The right to control the disposal of ashes is generally considered in Chapter 7 of this Report.
   

the Common law approach

6. 
   In Queensland, as in other Australian jurisdictions, there is no statutory hierarchy of persons with the duty and right to dispose of the body of a deceased person. Subject to the operation of the Cremations Act 2003 (Qld),⁴ disputes about the entitlement to decide the method and place of disposal are determined by the application of common law principles.
   
7. 
   As explained in Chapter 4, at common law, the persons with the entitlement to decide the method and place of disposal of a deceased person’s body, and the associated right to possession of the body for the purposes of its disposal, are, in order of priority:
   

• 
  an executor of the deceased person’s will (if willing and able to act);⁵
  
• 
  a person who is appointed as the deceased’s administrator by the Supreme Court;⁶ and
  
• 
  where there is no executor and no administrator has been appointed, prima facie, the person with the highest right to letters of administration (the potential administrator).⁷
  

8. 
   The order of priority for applying for letters of administration is set out in the Uniform Civil Procedure Rules 1999 (Qld).
   
9. 
   Where there is a valid will, the priority is based on the person’s interest in the estate. The order of priority, set out in rule 603(1) of the Uniform Civil Procedure Rules 1999 (Qld) is, in descending order:
   

(a) a trustee of the residuary estate;

(b) a life tenant of any part of the residuary estate;

(c) a remainderman of any part of the residuary estate;

(d) another residuary beneficiary;

(e) a person otherwise entitled to all or part of the residuary estate, by full or partial intestacy;

(f) a specific or pecuniary legatee;

(g) a creditor or person who has acquired the entire beneficial interest under the will;

(h) any one else the court may appoint.

There is no specific reference in rule 603(1) to the relationship that the person had with the deceased, although the persons mentioned in paragraphs (a)–(f) are all persons who the deceased has chosen to benefit under the will.

10. 
    Where there is not a valid will, the order of priority is based on the familial relationship between the person and the deceased. The order of priority, set out in rule 610(1) of the Uniform Civil Procedure Rules 1999 (Qld), is, in descending order:
    

(a) the deceased’s surviving spouse;⁸

(b) the deceased’s children;

(c) the deceased’s grandchildren or great-grandchildren;

(d) the deceased’s parent or parents;

(e) the deceased’s brothers and sisters;

(f) the children of deceased brothers and sisters of the deceased;

(g) the deceased’s grandparent or grandparents;

(h) the deceased’s uncles and aunts;

(i) the deceased’s first cousins;

(j) anyone else the court may appoint. (note added)

11. 
    Although rules 603(1) and 610(1) of the Uniform Civil Procedure Rules 1999 (Qld) set out the usual order of priority, rules 603(2) and 610(3) preserve the discretion of the court in relation to the making of a grant.⁹
    
12. 
    The courts have differed in their approach to applying the presumption in favour of the person with the highest claim to letters of administration. In some cases, the courts have adopted a narrow view and resisted assessing the merits of competing claims, including cultural and spiritual beliefs and practices,¹⁰ while in other cases, they have adopted a wider view and taken into account cultural and spiritual beliefs and practices as part of deciding which person has the strongest claim to the duty and right of disposal.¹¹
    
13. 
    In cases where there is a dispute between two or more people who are equally entitled to possession of the body for the purpose of its disposal — for example, where the deceased’s executors disagree on the method or place of disposal, or where there is a disagreement between administrators or persons with an equal entitlement to letters of administration — the court will often give significant weight to the practicalities of disposal without unreasonable delay. The court has also taken into account other practical considerations such as the wishes of the deceased person, where the deceased chose to live prior to death, the length of the deceased’s residence in that area, the convenience of family members in visiting the grave of the deceased, and the closeness of the claimants’ relationship with the deceased.¹²
    
14. 
    The person who is entitled to decide the method and place of disposal has a broad discretion in exercising that right. Generally, the court will not interfere with the person’s decision as to disposal unless the person has exercised his or her discretion unreasonably or capriciously.¹³
    
15. 
    Although a deceased person may have given directions about the disposal of his or her body, the person with the right of disposal is not obliged at common law to act in accordance with those directions.¹⁴ In Chapter 5 above, the Commission has recommended that, subject to certain qualifications, a person who is arranging for the disposal of the human remains (body) or ashes of a deceased person must take reasonable steps to carry out any funerary instructions left by the deceased about the method or place of disposal of his or her remains, or particular rites or customs that are to be observed.¹⁵
    
16. 
    The flexibility of the current common law approach to determining the duty and right to dispose of a dead body is one of its primary advantages. It enables the courts, in resolving disputes about the right of disposal, to adopt a pragmatic approach that takes into account the particular facts of the case.¹⁶ In this regard, one commentator has observed that:¹⁷
    

it may be difficult to envisage a better statutory approach without risking the flexibility preserved under the current common law approach.

17. 
    However, this inherent flexibility can also create some uncertainty, particularly as the law is still evolving in some areas.