Who has the rights if nothing is in the Will?
Losing a loved one is a time of grief. It can also be a time of great emotional stress if the wishes of your loved one in the handling of their remains is not set out in their Will.
In a family dispute over the handling of the remains of a loved one you need to seek legal advice as soon as possible about ways to resolve the dispute. This legal advice should be sought from an expert Wills and Estates Lawyer who has expert and up-to-date knowledge on issues arising in the handling of the remains of a loved one.
According to case law the Executor or Executors of a deceased Estate have the right to possession of the deceased’s body. However, this right is limited to fulfilling their duty to ensure a prompt and decent burial or cremation. Where there is no Executor or Executors than the parents or spouse of the deceased (i.e. the next of kin) have a right to possession of the body but only for the purposes of ensuring a prompt and decent burial or cremation.
It appears that your loved one had a valid Will and we assume that the Will has appointed an Executor or Executors. Based on the case law the handling of the remains of your loved one will rest with the Executor or Executors named in the Will.
If the Executor or Executors arrange for cremation of your loved one than the disposal of your loved one’s ashes also rests with the Executor or Executors. It is important to note that under Regulation 34 of the Public Health (Disposal of Bodies) Regulation 2002 it is not possible to cremate the body of a person if that person has left a written directive that their body was not to be cremated. However, this will not apply as it appears that your loved one left no instructions on the disposal of their remains in their Will that could be considered a written directive that their body was not to be cremated.
If there is more than one Executor and they cannot agree on the handling of your loved one’s remains than it may be necessary to apply to the Court for the issue to be resolved.
To resolve the family dispute as quickly as possible you need to seek urgent legal advice on the handling of your loved ones remains. This advice needs to be sought as soon as possible as one of the duties of the Executor of a deceased Estate is to arrange for the prompt and decent burial or cremation of your loved one. If you do not act straight away it may be too late.
Graeme Heckenberg is an expert Wills and Estate lawyer. If you are living on the Northern Beaches and surrounding Peninsula and need help and advice in a Will dispute or Estate matter call today for a consultation with an expert.
Call today for a an appointment closer to home on 9221 0341
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