Ashes battle: not just cricket

Helen Tudor-Fisk is continuing to find her feet as a wills and probate lawyer at Gruber & Gruber, a suburban Melbourne law firm.

In episode two of ABC comedy Fisk, Helen found herself acting for a daughter who was the executor of her late father’s estate.

To make matters more complicated, the client’s father had been having a relationship with a co-worker.

This co-worker said their relationship was “Instagram official” and that they didn’t need a piece of paper to say they were married because they were married in their hearts.

The main source of contention between the daughter and the new partner was what would come of the deceased’s ashes.

In his Will, the deceased had directed that his ashes be divided between his family and the new partner. Importantly, there was no mention of it being divided “equally”.

Arguing over a loved one's ashes may sound morbid, but Will disputes like this do happen.

And as seen in this episode, clients and their lawyers will at times have to sit around a boardroom table applying a mathematical formula to divide a deceased person’s ashes.

Maybe the deceased originally hails from another country and a family member wants their ashes scattered in their homeland. Or, as in Fisk, it may be a case of adult children not wanting a new partner to have final say over their mum's or dad's ashes.

But who does have first right to the body or ashes? Is it the person who paid for the funeral, the next of kin, the executor, or the coroner? And who decides who has priority?

Since ashes do not form part of the deceased’s estate and are incapable of being disposed of under a Will, the right to possess ashes automatically goes to the executor of the estate.

However, the executor does not have a proprietary right to the ashes, that is, they do not own them outright.  Rather, the executor holds the ashes as trustee to ensure the ashes are dealt with appropriately.

When determining how to appropriately deal with ashes, Australian courts have held that the executor ought to consider the following factors:

• The wishes of the deceased
• The wishes of the deceased’s relatives
• Broader community and cultural values, and
• Any other practical considerations the court deems necessary to consider.

Ultimately, the executor has the final say over what happens to the ashes and is well within their rights to “distribute” the ashes to themselves.

Despite this, Australian courts do have an implied power to order an executor to dispose of ashes in a particular way, and have done so.

If the deceased did not have a Will, the individual who applied for Letters of Administration will have control over the ashes.

Considering several different people might all lay claim to being the most logical person to administer someone’s estate, this is where problems really begin to emerge. 

Key takeaway points to avoid your remains becoming the subject of a family dispute and being turned into a snow globe:

• It is important to put a Will in place that validly appoints an executor who can take care of your affairs and burial/cremation once you die, and;
• It is important to talk about and express your wishes with regard to your burial/cremation during your lifetime.