It is only natural that surviving family members possess a strong emotional attachment to their loved one’s ashes. Unfortunately, this can lead to disputes as to who gets the deceased’s ashes and how the ashes should be distributed.
Who has the right to possess the ashes?
The deceased’s ashes do not form part of the deceased’s estate and cannot be disposed of under a Will. Therefore, the right to possess the ashes automatically vests in the executor of the estate. In instances where the deceased did not have a Will, the right to retain the ashes will go to the administrator of the estate.
What can an executor or administrator do with the ashes?
The Court has outlined certain expectations of what an executor or administrator should consider when dealing with the deceased’s ashes:[1]
- They are expected to consult with other interested parties;
- They should not exclude friends and relatives from expressing their affection for the deceased in a reasonable and appropriate manner;
- They should respect the cultural and spiritual values of the deceased; and
- They should have regard to the expressed wishes of the deceased.
While it is expected, an executor or administrator is not obliged to follow any of the above considerations. Ultimately, the executor or administrator has the authority to deal with the ashes as they see fit, and it is up to them to decide how to distribute the ashes.
What if there is a dispute about the deceased’s ashes?
It is becoming more common to see disputes arising over the possession of the deceased’s ashes after cremation.
In the Victorian Supreme Court case of Wang v Jiang (No 2) [2022] VSC 371, a dispute arose between the deceased’s son and the deceased’s second wife and the Court had to determine who should have control of the ashes of the deceased.
Wang v Jiang (No 2) [2022] VSC 371
Background
Kai Jiang (the deceased) died on 29 October 2021, and he was cremated on 9 November 2021.
The deceased was survived by his second wife, Yuqin Wang (Yuqin), his daughter Zimeng Wang (who he had with Yuqin) and his adult son Shuai Jiang (Shuai) from a previous marriage.
When the deceased died, Shuai organised the funeral service and took possession of the deceased’s ashes.
On 7 March 2022, Yuqin applied for a grant of letters of administration but Shuai objected on the basis that the deceased had left a Will dated 26 June 2017 (the purported Will). Pursuant to the purported Will:
- the deceased appointed Shuai as executor and trustee of his estate;
- the deceased’s assets in Australia were to be distributed between six people including Shuai and the deceased’s former wife; and
- that Shuai be given sole discretion on funeral arrangements and that other family members are not to interfere.
In addition, Shuai submitted that he and the deceased entered into a Property Transfer Agreement dated 1 July 2017 (property transfer agreement) which included the following statement by the deceased:
“… How my funeral should be arranged according to culture and how my ashes should be kept shall be decided solely by Shuai Jiang…”
Yuqin disputed the genuineness of the purported Will and the property transfer agreement and claimed that both were forgery.
Court’s decision
The Court acknowledged that the general rule is that the person named as the executor under a deceased’s Will has the right and authority to dispose of the deceased’s body.
However, the Court found the evidence produced was sufficient to establish a suspicion that the purported Will was not genuine. In particular, the distribution of assets was at odds with the deceased’s personal loyalties and the nature of his relationships at the time of execution. The Court also had doubts about the legitimacy of the property transfer agreement.
As the authenticity of the purported Will and property transfer agreement was in doubt, the Court did not think it appropriate to refer to the directions made in those documents. Instead, the Court deemed the appropriate person to deal with the deceased’s ashes to be the one who is likely to have been the closest to the deceased late in his life and as such, be invested with their trust and confidence.
At the date of death, Yuqin was living with the deceased and they were married and had been living together for 12 months. As such, the Court determined that it would be in line with community expectations that the spouse of the deceased should have authority and control of their partner’s remains.
Therefore, Yuqin was the appropriate person to have the responsibility of making decisions about the most appropriate way to deal with the deceased’s ashes. On this basis, the Court ordered the deceased’s son Shuai give the deceased’s ashes to Yuqin , who has the right to deal with them in her sole discretion.
Key takeaways
This decision highlights the Court’s pragmatic approach in resolving disputes in relation to the deceased’s ashes.
While an executor generally has the authority to deal with the deceased’s ashes, the resolution becomes less clear when there is no Will (or in this case, a suspicious Will).
If you find yourself in a dispute about a loved one’s ashes it is important to receive expert legal advice. Contact Hunt & Hunt’s experienced Wills & Estates lawyers today to discuss on 03 8602 9202 or at [email protected].
Article written by Linda Hart (Principal) and Jack Watson (Graduate)
[1] Leeburn v Derndorfer [2004] VSC 172, [16]
