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Deceased estate, burial plot licence, estate lawyer, Shire Legal, Miranda, Sutherland Shire, Sydney CBD

Disputing a burial plot licence

contract law deceased estate equitable estoppel estate planning estates Apr 15, 2020


Kovac v Chanak [2017] NSWSC 1023 (31 July 2017)

This matter relates to the burial of “Jovan Kovac” in plot #33 at Mona Vale Cemetery in June 2012.  At the time, the burial took place with the consent of the deceased’s cousin (the defendant in these proceedings), who holds the burial licence for plots 33 and 34, and agreed for Jovan to be buried in plot #33, next to Jovan’s father in plot #32.

The issue in dispute between the parties was whether, shortly before Jovan’s death, the defendant offered to transfer plots 33 and 34 to Jovan’s daughter (the plaintiff in these proceedings), so that Jovan’s wife could be buried in plot 34 next to Jovan.

The Court acknowledged that this dispute was of a contractual nature (rather than one based in property and ownership rights), and based on the oral evidence given by both sides of the family, the Court was satisfied that in the days prior to the deceased’s death, the defendant represented to the plaintiff that he would give the 2 plots to her, and in reliance on that representation, the plaintiff arranged for her deceased father to be buried in plot 33.

She subsequently asked for burial plot licence for plots 33 and 34 to be transferred to her.  The defendant refused, but instead offered to exhume the deceased’s body from plot 33.  The plaintiff contacted the local Council to arrange the exhumation, but the Council said it would not do so without a good reason.

In making its decision, the Court drew conclusions about the reliability of certain witnesses, including the defendant, in relation to which it was stated”

[The defendant]’s stubborn adherence to his recollection and refusal to admit even the possibility that he was mistaken, suggest either that he is a determined liar or, more likely, that he has persuaded himself as to the truth of his version of the facts … My doubt about him as a witness generally was fortified by his extravagant explanations of why his recollection must be correct and the documents were wrong.

The Court then dealt with the issue of equitable estoppel, where someone acts in reliance upon a representation another person made, and therefore it would be inequitable for that person to withdraw the earlier representation.  In relation to this dispute, the Court stated:

Having found the relevant representation was made, and accepting [the plaintiff]’s evidence that she acted in reliance on them, it is obvious that she did not act on the basis that this was an offer from which [the defendant] would be free to withdraw.  The very nature of burying a person in a plot bespeaks finality and the inability of the offeror to withdraw from the arrangement that has been proposed and accepted.”

The Court accepted that:

  • the defendant induced the plaintiff to adopt the assumption or expectation that the two plots would be transferred to her;
  • the plaintiff acted in reliance on the assumption or expectation by making the arrangements for the deceased to be buried;
  • the defendant knew or intended that the plaintiff would act in reliance on the representation; and
  • it is sufficient detriment for the purposes of a case such as this that the plaintiff, as executrix, exhausted her right and duty in relation to determining how to dispose of the body.

The Court held that the defendant was bound by an equitable estoppel arising from his promise to transfer both plots to the plaintiff, and that the unconscientious conduct to be remedied was his failure to transfer both plots.  The defendant was ordered to pay the plaintiff’s costs of the proceedings on an indemnity basis.

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