Ashes clashes: Fighting over a loved one's remains

Arguing over a dead person’s ashes may sound a bit morbid, but it does happen.

Maybe the deceased originally hails from another country and a family member wants their ashes scattered in their homeland. Or it may be a case of adult children not wanting a new step-parent to have final say over their mum’s or dad’s ashes. Ultimately, if the deceased had a Will and named an executor, it’s the executor who holds sway over the ashes.

The cost of formal disputes

Fortunately, formal disputes over ashes are actually not all that common. When people find out that fighting for the ‘principle’ surrounding a loved one's ashes can cost upwards of $10,000 in legal costs, they often become less argumentative.

These matters are dealt with at the Supreme Court level, so most people simply can’t afford to argue over ashes. Instead, they find a way to resolve their issues privately and save themselves the legal expense.

When a family can't reach an agreement, they can go to court, but it’s not at all advisable. It doesn’t make commercial sense, and it certainly won’t help the family dynamic. I’ve seen instances in which judges have gone so far as to order that ashes be divided in half. Is that really what you’d like to see happen to your loved one?

Real-world cremation feuds

I have seen ashes create friction firsthand. It can be quite common if someone’s not invited to a scattering – say, in the case of feuding siblings. Or sometimes an executor gets control of the ashes and just does whatever he or she wants, which leaves other loved ones feeling hurt or angry and then holding grudges.

I had one client who’d re-married a lady with two daughters from an earlier relationship. There was a mediation, because he’d been left out of his spouse’s Will. At the mediation, the daughters asked, “Where are mum’s ashes?” He replied that he’d already scattered them. Suffice it to say, lots of yelling ensued.

In another case – again, it was a second relationship – my client and her late partner, who had terminal cancer, had bought a joint plot together so their ashes could be interred together. But when my client’s partner died, his son from his first marriage, the executor of his Will, said to my client, “Nope. Sorry. Bad luck.” She got some legal advice to try to pursue the ashes, but found she couldn’t.

Then she came to us, got some better legal advice, and learned that though she was not entitled to ashes, she was actually entitled to make a family provision claim against his estate. We were able to get her a substantial settlement – but no ashes. (If the son had just given her the ashes, he would’ve saved himself a whole lot of money.)

Communication is paramount

The key to resolving these issues privately, without a messy court drama, is communication.

When you pass away, if you have a Will, the person you’ve named as executor may not know they have that role. They may not even know whether you wanted to be buried or cremated if you haven’t communicated this to them and if no one’s taken the opportunity to look at the Will.

There’s no point putting something in your Will if no one knows to look at it immediately leading up to the cremation or burial. If you want your wishes respected, don’t be cryptic: tell people.

Clear communication also extends to the wording of a Will, which can be quite crucial. For example, in a Will, if you say, “It’s my wish,” the word 'wish' is not binding on the executor, whereas if you say, “I direct,” 'direct' is actually a binding term and more enforceable under the law. Too often, for some reason, when it comes to burial, people write, “It’s my wish.”

The loss of a loved one can be tumultuous enough without family fighting over what to do with the remains of the deceased. It's important to deal with this issue using careful consideration, compassion, practicality and clear communication.

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Andrew Meiliunas

Maurice Blackburn Melbourne
Andrew Meiliunas is a Senior Associate in Maurice Blackburn’s Melbourne office who works exclusively in Wills and Estates Law. Andrew is a compassionate and resourceful lawyer who fights hard for his clients. He is a tough negotiator with almost a decade of experience, who holds ...

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