Attwood Marshall Lawyers Estate Litigation Senior Associate Martin Mallon joins Robyn Hyland on Radio 4CRB to discuss a recent culturally sensitive NSW Supreme Court case that the firm was involved in which shined a spotlight on honouring the cultural beliefs and burial rights of Aboriginal people after death.
WARNING: the content in this article discusses a deceased person and will use words and descriptions that may be culturally sensitive, and which might not normally be used in certain public or community contexts.
Brown v Weidig – a nationally significant case
This was a very tragic case about a young Biripi Aboriginal man, aged 23, who sadly committed suicide in January 2023 after jumping in front of a train. The deceased was survived by his mother, a white Anglo Saxon with a European background, his father a proud Aboriginal, and siblings. The mother and father of the deceased have been estranged for several years.
The deceased died intestate (without a Will) and did not leave instructions concerning his funeral or burial arrangements in another document. At the heart of the case was whether the deceased should be buried or cremated.
The deceased was born and raised in Taree, New South Wales, and intended to move back to the area from Sydney to be closer to family and friends.
The coroner formally released the body into the mother’s custody as next of kin although the details of the father were not recorded by their office. The mother subsequently held a funeral service (to the exclusion of the father and his side of the family) and organised for the body to be cremated without the father’s knowledge or consent.
On 7 March 2023 the father successfully filed an urgent application in the Supreme Court of New South Wales seeking injunctive relief to prevent the mother and funeral home from cremating or disposing of the body of his son.
The father pursued his substantive application seeking an Order that the body of the deceased be released into his custody with costs, and it was determined at trial.
Brown v Weidigis a unique case because applications concerning the custody of a body of a deceased person on the basis of Aboriginal cultural beliefs and values are rare.
The Court applied several legal principles in forming a decision.
The father submitted that the Court ought to have regard to the need to have the body of his son disposed of without unreasonable delay but with proper respect and decency striking a balance between common law principles and practical consideration.
In South Australia v Smith (2014) 119 SASR 247, Nicholson J identified four main considerations that could assist in the resolution of a dispute over the custody of the body:
- whom might be entitled to take out letters of administration (at ),
- any Aboriginal cultural matters and concerns (at ),
- the deceased’s own wishes (at ), and
- the wishes of any living close relatives (at ).
The father argued that a burial was of great importance to his son and his branch of the deceased’s family. He fought to lay his son to rest at for a cemetery in the young man’s birthplace of Taree, NSW, on or close to ancestral Aboriginal land.
To support his claim, the father filed affidavit evidence from a Board Member of several Aboriginal Land Councils and an Aboriginal Elder of Taree, who supported the father’s interpretation of Aboriginal customs and beliefs with respect to burial on country and family members.
Whom might be entitled to take out letters of administration
Under the Succession Act 2006 (NSW) the father and mother of the deceased were ‘equal next of kin’ and eligible to make an application seeking to be appointed Administrator of the estate.
An Administrator has the same rights and responsibilities as an Executor.
Aboriginal cultural matters and concerns
The father wanted a burial for his son on country, in reflection of Jeremiah’s Aboriginal cultural beliefs and values. The father made the following written and oral submissions in Court on this issue:
- Jeremiah was born and raised in Taree;
- He identified and registered as a Biripi Aboriginal man;
- He continued to visit Taree and intended to move back to the area;
- His family and ancestors are buried in Taree;
- The father’s request was supported by an Aboriginal Elder in Taree;
- Jeremiah informed several his family members that he had a strong desire to be buried next to them, specifically his grandmother
- cremation, whilst it has been adopted by some Aboriginal people, is not a traditional cultural practice of Aboriginal people. There is a belief that being cremated creates a disconnection and misplacement of the person’s spirit.
- The belief system is that if an Aboriginal person does not return to their ‘mother’ (i.e. mother nature), she becomes sick and the Aboriginal person’s soul/spirit becomes lost and wandering in an abyss of confusion and darkness. When an Aboriginal person is returned to ‘mother’, she recognises them, and they are reunited physically and spiritually and; it is this bond that allows their spirit to “pass over” or more precisely – continue on a spiritual journey to the dreaming;
- The deceased did not have any meaningful connection with any other place, religion, or culture.
The mother made oral submissions that indigenous persons can and do use alternative means to dispose of a body, including cremation.
The deceased’s own wishes
The father filed evidence from numerous family members outlining the conversations they had with Jeremiah about his desire to be buried on country upon his death.
In contrast, the mother made submissions that her son was proud of his European heritage and expressed a desire to be cremated.
In his written reasons, Justice Lindsay accepted that the deceased was genuinely proud of his Aboriginal heritage through the paternal line although he was equally proud of his mother and her European heritage.
The wishes of any close family and friends
The father filed evidence in Court from the deceased’s sister, cousin, Uncles and Aunty about their desire that he be buried on country in Taree pursuant to his Aboriginal cultural beliefs and values.
There were several issues for the judge to consider aside from the cultural beliefs of the deceased and his parents.
In addition to the cultural aspects, there were also the following issues that contributed to the determination:
- The logistical concerns in having the body buried or transported by the funeral home;
- The state of the body;
- the mother’s ability to visit the son’s resting place if he was buried on country in NSW;
- the mother unfortunately suffered disability, had restricted financial means to be able to travel when required to the burial location to visit the memorial, which would have put her at a disadvantage.
It was undisputed that the Supreme Court has jurisdiction to hear disputes of this nature. If the deceased had left a Will, the executor has the right to arrange the burial (Meier v Bell Unreported, Supreme Court of Victoria, Ashley J, 3 March 1997).
In the reasons for judgment, His Honour outlines the 15 legal principles enunciated in the case of Smith v Tamworth City Council.
His Honour cited a long running South Australian Supreme Court of Appeal case of Marshall v Elson  SASCA 1,  SASCA 3 and  SASCA 4 that involved a dispute between numerous family members about burial and cremation of their late relative. The Court ruled in favour of cremation followed by the distribution of ashes amongst family members of the deceased. His Honour noted the similarities in the two cases and cremation and sharing of ashes occurs in hotly contested matters.
The Court had concerns about the logistics in transporting the body of the deceased after receiving evidence from the funeral home, in addition to the mother’s ability to visit the gravesite on a frequent basis. The father offered to pay the costs to transport the body, funeral, and reasonable travel expenses of the mother to visit the gravesite for a period of three years.
Notwithstanding the evidence filed on behalf of the father, His Honour refused to make the Order and granted the mother permission to proceed with cremation. His Honour granted the father an option of taking half of the deceased’s ashes. The father declined to take up the option on the basis that it went against his cultural beliefs and values.
This was an extremely disappointing outcome for the father. The father and his side of the family believe His Honour made the wrong decision in this case and are of the view that it sends the wrong message about closing the gap.
Unfortunately, this was a matter of the mother and father both having extremely firm beliefs on what they wanted for their late son, and it took a Court to consider all the facts of the case and what the most appropriate resolution would be. There was probably never going to be a decision which kept both parties happy and it is clear the Judge did his best to find a ‘middle ground’.
This case serves as an important reminder how important it is for everyone, no matter their age, health status, or the value of their assets, to have a Will that clearly stipulates your wishes, including how you want your body to be disposed of after you pass away (i.e. burial or cremation).
Many young people believe they do not own enough assets to warrant writing a Will, however, this case is an example of what can happen even in instances where disputes may not arise about an estate specifically, but some of the other issues that can come to the surface when a loved one passes away. It is the family who are left behind that must then make important decisions, and family members do not always agree on these decisions, leaving room for disputes to erupt.
If this young man had a Will that clearly outlined his burial wishes and if he wanted to follow Aboriginal customs and beliefs as part of his burial rights, the dispute would have likely been resolved much earlier, without the need to battle it out in court. It is very important to obtain advice from an experienced estate planning lawyer when drafting your Will and make sure that these issues are covered. It will save your family a lot of additional grief and unnecessary legal costs.
If you are involved in a dispute over funeral and/or burial arrangements, it is important to obtain legal advice from someone who practices in the area as a matter of priority. Any delay or failure to obtain advice could result in it being too late to file an application.
Attwood Marshall Lawyers – Leading Estate Litigation Law Firm
Attwood Marshall Lawyers have one of the largest and most experienced estate litigation teams in Australia.
Although disputes over body disposal and funeral arrangements are rare, our lawyers are well-versed at handling disputes of this nature. We help support families during the grieving process and resolve conflict to ensure the deceased’s wishes can be carried out and all parties can move forward with their lives.
If you find yourself involved in a sensitive dispute of this nature, it is important to speak to someone who understands this area of law, who can help guide you to a resolution as quickly as possible.
Whether you are the next of kin or the executor of the estate, we will help you understand your right to challenge any decisions being made about the disposal of someone’s body that you believe goes against what they wished.
For a confidential discussion about your specific matter, please contact our Estate Litigation Department Manager, Amanda Heather, on direct line 07 5506 8245, email email@example.com or free call 1800 621 071.