Which case won?

The case for J
  • When my father died, my mother said to me that it was “a really lovely service” and that she would like “something similar with White Lady Funerals”.
  • My sister’s proposal for a bare cremation is devoid of any ceremony and completely ignores the fact that people attending the funeral might need to be supported in their grieving. Many people attending a funeral gain comfort from the presence of others and from calming music.
  • It is also impossible to conduct a service that is compatible with the most basic norms of human dignity without something being said about our mother at the cremation.
  • To honour my mother’s express wishes and to support people in their grieving, the court should order that we engage White Lady Funerals to conduct a public funeral and cremation.
The case for K
  • When our father died, J took too much control of the funeral arrangements and this caused tension and anger among family members. My mother did not want her funeral to be controlled in the same way.
  • In fact, in September 2020, shortly before she died, my mother signed a statutory declaration stating: “I do not wish for a funeral service to be carried out on my passing.”
  • The court should therefore reject J’s request to engage White Lady Funerals for a public funeral and cremation.

So, which case won?

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Case B won. You were right!

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case b75%

Expert commentary on the court's decision

Tierah Faulder
Tierah FaulderLawyer
“This case highlights the value in very clearly articulating your funeral wishes if you plan to appoint family members as joint executors in your will. It also highlights the risk in appointing joint executors who have a contentious relationship.”
Court rejects plaintiff’s request for public funeral

In McCredie v Batson [2020] NSWC 1913, the court refused to grant the order sought by the plaintiff, Jenise McCredie, for a public funeral conducted by White Lady Funerals, leaning more toward the position set out by her sister, Karen Batson.

Court will usually replace joint executors who cannot agree on funeral plans

The law states that two or more executors named in a will are required to act jointly. The law will not recognise their separate acts and it is essential that all aspects of the administration of the estate are agreed to by both executors.

Granting Ms McCredie’s order would have involved the court making an order for one executor to submit to the will of the other.

The court noted that rather than make such an order, the usual course of action would be to dismiss both executors and appoint new executors who are able to agree.

Court acts to determine funeral arrangements rather than replacing executors

Given Ms McCredie’s and Ms Batson’s desire to cremate their mother’s body by Christmas, there was no time for the court to appoint new executors.

Therefore, the court intervened to resolve the dispute itself, ensuring that the deceased could be cremated in a timely manner.

Law concerning burial of a deceased person

The court, quoting the following passage from Smith v Tamworth City Council (1997) 41 NSWLR 680, outlined the law concerning burial of a deceased person:

…a named executor who is ready, willing and able to do so has the right to arrange for the burial of the deceased body; apart from any applicable statute dealing with the disposal of parts of the body, a deceased person has no right to dictate what will happen to his or her body; a person with the privilege of choosing how to bury (or cremate) a body is expected to consult with other stakeholders about the process (including any associated funeral) but is not legally bound to do so; where two or more persons have an equally ranking privilege to arrange the burial, the practicalities of burial without unreasonable delay will decide the issue; cremation is nowadays equivalent to burial; and the holder of a right of burial cannot use his or her right so as to exclude friends and relatives of the deceased expressing their affection for the deceased in a reasonable and appropriate manner, such as by placing flowers on a grave. The Court may take into consideration the deceased’s wishes on the subject…

Court ascertains deceased’s wishes for modest family gathering constructed around cremation

In determining what orders to make regarding the funeral, the court first had to ascertain the wishes of the deceased, and then consider whether there were any factors that would modify how those wishes should be given effect.

The court accepted Ms McCredie’s evidence that after the husband’s funeral, the deceased said it was a lovely service and she wanted something similar with White Lady Funerals.

However, the court also accepted that the deceased was competent and of full understanding when she made a statutory declaration that she did not wish for a funeral service to be carried out on her passing.

According to the court, this clearly meant that the deceased did not want a conventional funeral like the one for her husband.

Considering the range of conflicting evidence, the court found that instead she wanted a private and modest, but dignified family gathering constructed around her cremation.

Court considers practical considerations in giving effect to deceased’s wishes

The court noted that there were practical considerations in giving effect to the deceased’s wishes for a private and dignified family gathering.

Ms Batson’s vision of the cremation was very bare and did not consider that people might need to be supported in their grieving in an inclusive atmosphere and where family conflict was minimised.

The court said that its orders must provide something to accommodate these fundamental requirements in a manner that was still compatible with the deceased’s desire not to have a public funeral.

Court orders private funeral conducted by White Lady Funerals

The court directed that instructions be given for the cremation to be conducted by White Lady Funerals.

This was on the basis that the deceased had expressed a preference for White Lady Funerals and because that funeral director would have the necessary professional judgement to deal with a family which was as divided as this family was.

The court gave instructions for White Lady Funerals to conduct a relatively modest cremation service, rather than a public funeral.

Importance of clearly articulating funeral wishes and choosing executors wisely

The court’s orders as to how the funeral was to be conducted were very prescriptive.

No one, except the funeral director, could give a eulogy or make any remarks about the deceased.

There was to be no choral singing, but in the professional judgment of the senior officer, some recorded background music could be played.

So, in the end, neither sister got the send-off for their mother that she had envisaged.

What they did get was a $51,000 legal bill for an argument over a funeral that cost $11,000.

This case highlights the value of very clearly articulating your funeral wishes if your plan is to appoint family members as joint executors in your will.

It also highlights the risk in appointing joint executors who have a contentious relationship. As the court observed in McCredie v Batson (No. 2) [2021] NSWSC 78 (a decision ordering that both sisters’ legal costs be paid out of the estate), this “litigation was conducted with a level of persistent acrimony between two sisters that is difficult to comprehend to an objective observer”.

For more information, please see When co-executors go to war, will there be anything left of the estate? Which case won? and How do you choose an executor for your will? – the horror story edition.

NOTICE: This article is accurate as at the time of publication and does not constitute legal advice. Please see our legal notices page for more information. Information related to coronavirus can be outdated very quickly.

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