Clarifying the deceased’s relationships at the time of death – and determining who has the right to decide on burial or cremation
Mar 22, 2019If a deceased person has not specified whether they would like to be buried or cremated (in their Will or otherwise), the legal right to make such a decision rests with the deceased’s next of kin.
The Supreme Court decision of Dragarski v Dunn [2019] NSWSC 300 dealt with a deceased who had died intestate (that is, without a Will). The issue became who was the deceased’s next of kin – there were competing claims between the father of the deceased’s child (claiming to be the deceased’s de facto) and the deceased’s mother. The issue, then, was one of fact, requiring the Court to look at the circumstances of the apparent relationship between the deceased and the claimant, to determine whether or not it could be considered to be a de facto relationship.
The Court referred to the nine criteria set out in section 21C(3) of the Interpretation Act 1987 (NSW), being:
- The duration of the relationship
- The nature and extent of their common residence
- Whether a sexual relationship exists
- The degree of financial dependence or interdependence, and any arrangements for financial support, between them
- The ownership, use and acquisition of property
- The degree of mutual commitment to a shared life
- The care and support of children
- The performance of household duties
- The reputation and public aspects of the relationship.
Note that no particular finding in relation to any of those matters is necessary in determining whether 2 persons have a relationship as a couple.
The Court noted that in this instance, where a person has recently died:
“It is quite possible in cases such as this, where it is understandable that emotions run high, that one party may convince himself or herself that the relationship was as he thought it to be.”
The Court took into account the various statutory declarations presented by friends and family members, and also considered the “contemporaneous objective evidence” – that is, documentary evidence from independent sources.
In this instance, the deceased commenced a relationship with the claimant in 2003. They lived together from approximately 2010, and their daughter was born in 2011. The parties separated in 2016 when the deceased moved out of the family home. The claimant continued to visit the deceased at her new home. The claimant considered that they had resumed their relationship.
In March 2018, the deceased moved back with the claimant – but the evidence suggested that she did so, not for the purpose of rekindling the relationship, but to re-establish a relationship between the claimant and their daughter.
Upon her initial admission to hospital, the deceased noted her mother as her next-of-kin. At around this time, the deceased had also noted her mother as a contact for Centrelink purposes. At the time, she was receiving a single parent pension and Family Assistance Benefit as a single parent.
Just prior to her death, the deceased posted on social media:
“I am still at his house we still not together though. Kids are great”
She also sent a message to the claimant’s sister:
“Yes I am staying with Nicky. We have worked a lot of things out. We are happy where we are at the moment. He has been great.”
The Court suggested:
“It is natural that once the deceased was admitted to hospital in such a serious condition, a compassionate and emotional man like the [claimant] would go out of his way to attend to the deceased and be kind to her.”
Accordingly, the Court concluded that there was no de facto relationship at the time of the deceased’s death, and dismissed the claimant’s application, meaning that the deceased’s mother was able, as the next-of-kin, to determine the method of disposal of her body.
Important points
- If you are certain as to your preferred method of disposal of your body following your death, you should include an appropriate clause in your Will. You can also specify whether you would like to donate your organs or even donate your body for medical/scientific research purposes.
- If you have changed the circumstances of your living arrangements, particularly if a former partner is involved, consider preparing a statement to that effect, so that you can clearly express your understanding and your intentions regarding the existence (or non-existence) of any such relationship.
Contact the Shire Legal team if you have any questions.
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