When someone dies, their personal representative (i.e. the executor or administrator) is tasked with taking suitable steps to dispose of their body.  The personal representative’s decisions regarding such disposal are paramount and as such, their wishes have priority to any other person including the deceased person’s spouse, child or parents.  In recognition of this priority, a personal representative is given a right of possession in a dead body for the purpose of disposal.

Yet despite these rights and priorities, the recent Queensland case of Yu & Anor v Chief Executive, Department of Justice & Attorney General^[1] cautions personal representatives against delaying the disposal of a deceased body.  In particular, there can be adverse consequences if a personal representative takes too long to dispose of the body.

 

Background – Yu & Anor v Chief Executive, Department of Justice & Attorney General

Mrs June Woo, 82 years of age, died in 2002 at the Princess Alexandra Hospital in Brisbane.  Her attending doctor certified the cause of death as a result of raised levels of potassium in the blood.  After Mrs Woo’s three daughters (‘Applicants’) were dissatisfied with the hospital’s treatment of their mother, the Brisbane Coroner ordered a post-mortem examination of the deceased’s body, the report of which was released in 2003 and confirmed the original cause of death.

The Applicants then made a complaint to the Health Quality and Complaints Commission, who concluded in 2006 that the complaints were without foundation.  In 2007, at the request of the Applicants, the then Minister for Health ordered an inquest into the deceased’s death. The inquest, in addition to confirming the original cause of death, concluded that “there was no therapy or treatment available to the doctors at the Princess Alexandra Hospital that would have been likely to extend Mrs Woo’s life or that should reasonably have been attempted.”^[2]

After the Attorney-General declined their requests to re-open the coronial inquest, the Applicants applied for a statutory review of the Attorney-General’s decision and an injunction to prevent the Attorney-General from disposing of the deceased’s body so it could be further analysed.  These applications were dismissed by the Supreme Court of Queensland (‘Court’) in 2010.  The Applicants appealed this decision to the Court of Appeal but subsequently consented to their appeal being dismissed in 2011.

 

Burial by Government

Shortly before their appeal being dismissed, the Coroner released the deceased’s body to Simplicity Funerals at the request of the Applicants.  However, the Applicants refused to allow Simplicity Funerals to bury the body on the basis of allegations that the deceased’s organs were not returned to her body.

The Court eventually ordered that Simplicity Funerals release the deceased’s body to the chief executive of the Department of Justice and Attorney-General (‘Chief Executive’) to bury the body in accordance with section 3(1) of the Burials Assistance Act 1965 (Qld) (‘Act’), which provides as follows:

“It shall be the duty of the chief executive to cause to be buried or cremated the body of any person who has died or who has been found dead in Queensland, in any case where it appears to the chief executive that no suitable arrangements for the disposal of the body have been or are being made otherwise than by the chief executive.”

In coming to their decision, the Court of Appeal disagreed with the Applicants’ argument that section 3 of the Act only applied if the deceased had no family.  The relevant issue was not whether the deceased had family but whether anyone had made suitable funeral arrangements.  In this case, after a delay of some 14 years, the Court of Appeal found that there had clearly been no suitable arrangements in place.

 

Warning to personal representatives

This “terribly sad case”^[3] provides a warning to personal representatives, particularly those who are the deceased’s close family.  Ordinarily, since the Applicants were the deceased’s executors, they would have made all the decisions regarding the funeral arrangements.  However, their wishes were overridden by the State Government due to their delay in arranging for the disposal of the deceased’s body.  Instead, the State Government became responsible for arranging the funeral and the Applicants had no say in the funeral such as the burial site or the deceased’s clothing.

Personal representatives must ensure they administer a deceased estate, including disposing of the deceased’s body, within a reasonable time to avoid adverse consequences.  If you need assistance in administering a deceased estate, contact Ramsden Lawyers today.  We can assist you with any of your estate planning and deceased estate matters.

[1] [2016] QCA 54.
[2] Yu v Attorney-General for the State of Queensland; Yu & Ors v Department of Justice and Attorney-General & Anor [2010] QSC 195 at [8].
[3] Yu & Anor v Chief Executive, Department of Justice & Attorney General [2016] QCA 54 at 1.