Boni v Larwood - [2014] SASC 185

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
BONI v LARWOOD & ORS
[2014] SASC 185
Reasons of Judge Withers a Master of the Supreme Court
8 December 2014
HEALTH LAW - BURIAL AND CREMATION - BODIES AND GRAVES
HEALTH LAW - BURIAL AND CREMATION - OTHER MATTERS
MEMORIALS - GRANTEE RIGHTS
Application by one of four executors to change existing wording on a headstone.
Burial and Cremation Act 2013 (SA) s 39, referred to.
Smith v Tamworth City Council (1997) 41 NSWLR 680; Leeburn v Derndorfer [2004] VSC 172; Ralston v Ralston [1930] 2 KB 238, considered.

BONI v LARWOOD & ORS
[2014] SASC 185

JUDGE WITHERS. The plaintiff instituted these proceedings by summons filed on 10 July 2014. On the same day the plaintiff filed an interlocutory application seeking the same relief as that sought in the summons. That relief is as follows:
1.That the headstone marking the burial site of the deceased Maurizio Mariano Davide Boni (“the deceased”) situated at Payneham Cemetery Marian Road, Payneham in the state of South Australia be corrected to refer to the Plaintiff, the son of the deceased as “David” (“the Works”).
2.That the works be carried out by a reputable stonemason selected by unanimous resolution of the executors of the estate of the deceased, or in the absence of such a resolution, selected by the Court.
3.That the costs of the works be borne by the Estate of the deceased.
4.That the costs of and incidental to this application be borne by the Estate of the deceased.
The interlocutory application seeking those orders was made pursuant to Rules 83 and 206 of the Supreme Court Civil Rules 2006 (SA). Rule 83 provides for representative actions by or against executors, administrators and trustees. Rule 206(1) provides as follows:
206 (1) In an action related to a trust or deceased estate, the Court may (if it thinks fit) determine questions arising in the action without making an order for administration.
In support of the summons and application, the plaintiff relied on an affidavit filed by him on 10 July 2014 (FDN 3).
The defendants to the plaintiff’s action are the sisters of the plaintiff. Together with the plaintiff they comprise the four children of Maurizio and Celestina Boni. They are the executors of Maurizio’s estate. Their parents were married in Italy in 1961, having both been born in 1935. They migrated to Australia in 1966. The family thereafter lived in Maylands. There were four children of the marriage. They comprise the first defendant, who was born in 1963 (“Lucy” or “Lucia”), the second defendant born in 1966 (“Sara”), the plaintiff, being the only male child, born in 1968 (“David”), and the third defendant born in 1970 (“Nadia”). Maurizio worked on the production line at Chrysler and Celestina worked as a part-time cook at Kmart.
The defendants opposed the orders sought by the plaintiff. In support of that opposition an affidavit of the third defendant Nadia was filed on 26 September 2014 (FDN 5). Affidavits were filed from the second defendant Sara (FDN 6), which largely verified the truth of Nadia’s affidavit, and Lucia (FDN 7), the first defendant, who also expressed her agreement with the bulk of Nadia’s affidavit. Both the first and second defendants excluded some paragraphs of Nadia’s affidavit from their support as they related to matters of which they had no direct knowledge.
Background
I shall hereafter refer to family members by their first names. No disrespect is intended.
The plaintiff David was born on 15 April 1968. In his birth certificate, which is Exhibit “DB1” to his affidavit (FDN 3), his christian name is recorded as David. It is apparent from the affidavit of Nadia (FDN 5) that he was baptised in the name Davide. She attests that to be the name used by her parents, who usually spoke to the children in Italian. I note that one of Maurizio’s names was Davide.
The plaintiff attests that he attended school until 1988 and then went to Flinders University to study for a Bachelor of Education. The outcome of that study is not given. He describes his mother as a loving person. He asserts that his father was often withdrawn and prone to fits of violence and rage directed towards him, his mother, and to the first defendant. In his affidavit at paragraph 12 he describes being abused by his father when he was a child. He says that the abuse was both physical and verbal. He describes having his legs “stomped on”. He describes being beaten with a belt and being hit with the open hand. He has a belief that his father tried to kill him twice with a knife – see paragraphs 13 and 14 of his affidavit. David says in his affidavit that his mother called him David but that his father always called him Davide during episodes of abuse. He says that his sisters and others called him David.
In 1996 at age 28 he moved to Melbourne. Thereafter he only spoke to his father at Easter and at Christmas but spoke to his mother on a weekly basis. His mother died in April 2007, after she was diagnosed with cancer in September 2006. David says that he was devastated by her death. He stayed in Adelaide for two weeks after her death to provide support to his sisters and to receive comfort from friends. He did not speak to his father during that time. His mother was buried in a jointly owned double cemetery plot at Payneham Cemetery.
A headstone was subsequently erected on the grave by his father. David says that he was not consulted about the wording on the headstone. He describes going to the grave for a blessing of the headstone. In his affidavit he records this as occurring at around Christmas 2007 but accepts that it could have been 28 October 2007 as attested by other deponents. He saw that on the headstone his name had been spelt “Davide”. This, he says, caused him to immediately recall feelings of fear, helplessness and horror. A photograph of the blessing was taken and is exhibited to the affidavit of Nadia as Exhibit “NT-02” (FDN 5).
Nothing thereafter appears to have happened in relation to the headstone until a telephone conversation on 16 April 2011, when he says that his father telephoned him for his birthday – see paragraph 30 of FDN 3. He told his father that he wanted his name corrected on the headstone and was told that he could change it when he (the father) died. David attests that he remembers this well as it was very significant to him. His father died on 5 May 2011. Neither David nor his father Maurizio appear to have told any of the other executors of that conversation. There is no corroborative evidence in relation to it. Nothing then happened for some twelve months.
On 22 May 2012 Nadia emailed to the plaintiff proposed alterations to the headstone, including the possibility and cost of removing the letter “e” from his name. This indicates that at least Nadia was aware of the plaintiff’s concerns about the spelling of his name. The plaintiff responded in a somewhat emotional email setting out his distress at the spelling of his name on the headstone and saying that he wanted the spelling corrected. He would not consent to any change that did not fix his name. Nadia expressed shock at his reply and said she would reply later. On 1 June 2012 Nadia emailed to the plaintiff a quote for the cost of changing the headstone. The exchange of emails is Exhibit “DB6” to the plaintiff’s affidavit. The first is an email from Nadia to David of 22 May 2012 about changing the headstone. The second is an email some four hours later from David to Nadia which was very emotional in tone and demanded that his name must be corrected. This was repeated in an email on 22 May 2012 at 17.29 pm when he indicated that he did not consent to spending any money on the headstone unless alterations were made to his name. On 1 June 2012 at 21.15 pm Nadia emailed the plaintiff advising that she had been upset by the tone and language of his response, that she felt bullied and attacked, that the headstone did not belong to David, that he was not the only one misdescribed as Lucy had been called Lucia, that it was their Mum and Dad’s headstone, and there were lots of things on it that she did not agree with but she would not agree to the plaintiff’s demands. This seems to be the last communication in 2012.
David attests to a further communication by email with his sister Sara in about May 2012. She expressed the view that the spelling of his name on the headstone should not be altered – see Exhibit “DB7” to David’s affidavit.
In May 2013 Nadia advised the plaintiff by telephone that a stonemason had been engaged to change the memorial to include on it the names that her father had wanted included but that no change had been made to the existing inscriptions, including the plaintiff’s name, all of which remained as determined by their father. There was then an exchange of letters between the solicitors for the plaintiff and the defendants in July and early August 2013. These proceedings were issued almost twelve months later.
In a responding affidavit filed on 26 September 2014 (FDN 5) Nadia attested that her parents spoke Italian and English, that her father’s English was relatively rudimentary and that at home they tended to speak Italian. She attested that the parents referred to the children by the Italian pronunciation of their names. She noted that the plaintiff had been baptised Davide and attested that to be the name used by her parents. Alternatively, they would call him “Davidut” or “Daviduch”. She does not recall them addressing him as “David”. She asserted that the defendants called the plaintiff David, as did his friends. She asserted that the name Davide was one of her father’s names and that it had some family significance.
After her mother had been buried at the Payneham Cemetery in 2007 her father designed a headstone. He drew the design in his garage. He visited her mother’s grave daily. He became quite obsessed with the design of the headstone. Nadia attested that in April 2007 her father Maurizio showed her the design and the spaces left to fill in names after his death. He told her what would then need to be added. On 23 October 2007 the headstone was completed and her father appeared very pleased. The headstone included the name “Davide”. He organized for a blessing of the headstone with the whole family present, including the plaintiff. This took place on 28 October 2007. There is no evidence that any concern was then or later raised by the plaintiff about the spelling of his name to his sisters, his father, or anybody else. A photograph of the blessing is Exhibit “NT-02” to Nadia’s affidavit. Nadia attests that her father would often talk about the headstone.
In paragraphs 26 and 27 of her affidavit, which are noted as being conversations in 2011 and corrected by her in her evidence to being conversations in 2010, Nadia attests that in April 2010 she had a conversation with her father who told her that he was going to telephone the plaintiff for his birthday in an attempt to build the bridge between them. She attests that she, Nadia, rang the plaintiff thereafter for his birthday. The plaintiff told her of the telephone conversation with his father and was annoyed by it. He told her that it was all too late and he was not interested in making up any relationship. She said that both her father and the plaintiff were very emotional about the telephone call. Neither said anything about changing the spelling of the plaintiff’s name on the headstone.
According to Nadia’s affidavit her father died on 5 May 2011. Together with her sisters, they thereafter entered the family home and cleaned it in preparation for sale. Nadia was unable to do much physical work as she had three children, including premature twins who had been born in 2009. She was therefore asked to attend to the paperwork. During the course of this she received a letter from Payneham Cemetery about the ownership of the burial plot. It was for the next of kin to complete. She completed the form and returned it to the cemetery, together with a cheque for $77.00. It had to be signed before a Justice of the Peace. In about May 2011 she received a further letter from the Payneham Cemetery forwarding to her the grant for the plot. That grant is exhibited as Exhibit “NT-03” to her affidavit. Exhibit “NT-04” to her affidavit is a copy of the Regulations that then applied at Payneham Cemetery. Regulation 12.7 notes that it is the responsibility of the executor of the grantee to transfer the grant to an appropriate person. Regulations 13 and 14 go to monuments and the rights of grantees in respect thereof.
The three defendants wanted the headstone alterations to be done as instructed by their father. By February 2013 they were becoming increasingly worried that the work still remained to be done. Nadia then met with Mr Caruso from S D Tillett Memorials on 6 March 2013 and arranged for the tombstone to be completed by adding to it the various names that her father had wanted added and in respect of which spaces had been left. A plan of the final wording and design is at Exhibit “NT-05” to her affidavit. She says that she paid Tilletts for the changes and later her sisters reimbursed her a third each. There was no cost to the estate.
On 5 May 2013 the completed tombstone was blessed. She did not tell the plaintiff of this event. On 9 May 2013 she called the plaintiff and left a message on his mobile telephone about the tombstone. She received a return call on 12 May 2013. She told the plaintiff what had happened. There was a heated discussion and he hung up. In July 2013 a letter was received from the plaintiff’s lawyer. Her lawyers responded. There were no further communications until these proceedings were issued. Most of the estate has been distributed and trust statements annexed to the affidavit of Nadia indicate that $22,981.60 remains in trust for the estate.
The second defendant Sara filed an affidavit on 1 October 2014 verifying the truth of Nadia’s affidavit. She does exclude some paragraphs about which she did not have direct knowledge. Sara attests that her father often showed her his design for the headstone and talked about the wording that was to be on it and for the future. She said he seemed quite obsessed about it. Her father had also told her on several occasions that he wanted to build a bridge in his relationship with the plaintiff. She attests that the plaintiff never said anything to her about any agreement with his father to change the spelling of his name.
An affidavit of Lucia was filed on 3 October 2014 (FDN 7). Again she agrees with the affidavit of Nadia but excludes some paragraphs about which she has no direct knowledge.
Both David and Nadia were cross-examined at the hearing of this matter. David in cross-examination gave evidence that after his mother’s death in April 2007 his father spoke to him only once per year on birthdays only. He was adamant that his father had told him that he could fix the name when he was gone. He said at page 5 of the transcript that his father said to him in the April 2011 conversation, “You can fix it when I’m gone”. He said that his father did always address him as Davide. He had not raised objections to the spelling of the name of the headstone at the blessing on 28 October 2007 and was too upset to raise it on earlier telephone calls in 2009 and 2010. He said that he believed his father was ill and in Calvary Hospital at the time of the telephone call of 16 April 2011. When asked why he did not tell anyone about this telephone call and his father’s permission to change the headstone, he said that it was a very personal and private matter and he did not want to share it with anybody. He described it as a very short conversation but one that he remembered clearly.
Nadia was also cross-examined. In cross-examination she acknowledged that she had given the wrong date in paragraphs 26 and 27 of her affidavit ascribing telephone conversations to 2011 whereas they had in fact occurred in 2010. She corrected that error.
In weighing up the evidence in this matter it is difficult to understand why it is that the plaintiff did nothing earlier about correcting the spelling of his name on the tombstone if it was of such moment to him. It is equally, if not more difficult to understand why he did nothing about telling his sisters or any of them of the conversation with his father in April 2011 when he was allegedly given permission to change the spelling of the name on the tombstone after his father died if the matter was so important to him. It is also peculiar that it appears that their father Maurizio also said nothing about that conversation and the giving of permission for the headstone to be changed after his death when apparently its design had occupied such a prominent place in his mind.
Counsel for the defendants in his cross-examination pointed out the various opportunities the plaintiff had to raise the issue of this conversation, none of which had been taken. He noted no mention of it had been made in the first letter from his solicitors to Nadia. It was suggested to the plaintiff that either the conversation had not happened, or, alternatively, he had misinterpreted what had been said.
To the extent that the conversation allegedly giving permission to alter the tombstone might be relevant in determining this matter, in my view, it is for the plaintiff to establish on the balance of probabilities that it occurred. I am not satisfied that is the case. The failure to raise it and address it at an early stage after the conversation occurred, or at least after his father’s death, casts considerable doubt on the accuracy of the plaintiff’s recall. I do not suggest that the plaintiff did not have a conversation with Maurizio on 16 April 2011 but I am not persuaded it was to the effect of permission as contended by David.
Beyond that I formed the impression that both witnesses who were cross-examined were doing their best to put matters truthfully to the Court. I note there is no challenge to the evidence of Lucia or Sara.
The plaintiff argued that there was no unanimity in the decision of the executors to deal with the tombstone in the way in which it had been dealt with and that the plaintiff was therefore entitled to come to the Court invoking its inherent jurisdiction granted by Section 69 of the Administration and Probate Act 1919 (SA). I note that there is no reference to Section 69 of the Administration and Probate Act in either the summons or the interlocutory application. Rather reliance has been placed on the Court’s power under Rule 206 of the Supreme Court Civil Rules 2006 (SA). The plaintiff’s counsel argued that notwithstanding that it appeared that Nadia was the grantee of the burial plot, there were authorities to suggest that the expressed wish of the deceased about a final resting place should so far as possible be carried out. It was also suggested that Nadia as the grantee of the burial rights must hold those rights on trust for the estate at large.
The only authority specifically relating to the wording on a tombstone to which the Court was referred was Ralston v Ralston [1930] 2 KB 238. This was a case of libel by an estranged wife against her estranged husband. The alleged libel was a statement on a tombstone that the husband’s deceased second partner was the wife of the estranged husband. The plaintiff’s claim in that matter was refused. The Court held that although the inscription was capable of defamatory meaning the plaintiff by reason of the Married Women’s Property Act could not sue her husband on it as the action would be for a tort and not the protection and security of a separate property. Judgment was entered for the defendant. However, the Court did appear to indicate that it would consider the wording on a tombstone in those circumstances. It was put for the plaintiff that the deceased Maurizio had agreed to the spelling of Davide being corrected on the tombstone and that wish should be implemented by the executors.

In responding submissions the defendants asserted that the application should be dismissed as the headstone was now the personal property of Nadia. It was suggested that the Court had no jurisdiction in any event to determine the appropriateness of one wording or the other, and in any event that it was seven years since the erection of the headstone and three years since the death of the father and the grave should not be disturbed. The wording on the headstone was that determined by Maurizio when he held the grant and it was his right to choose the wording and spelling.
Reference was made to the very helpful decision of Young J in Smith v Tamworth City Council (1997) 41 NSWLR 680. In that case his Honour reviewed various authorities in relation to powers of the Court in respect of rights persisting after the death of a person and where those rights resided.
At 693, his Honour said:
Having reviewed these authorities, what is the current legal position with respect to the right of burial in New South Wales?
It is useful to state the propositions that follow from the above analysis and from the analysis subsequently appearing in these reasons before dealing with the facts and submissions in the present case.
1. If a person has named an executor in his or her will and that person is ready, willing and able to arrange for the burial of the deceased’s body, the person named as executor has the right to do so.
2. Apart from appointing an executor who will have the right stated in proposition 1, and apart from any applicable statute dealing with the disposal of parts of a body, a person has no right to dictate what will happen to his or her body.
3. A person with the privilege of choosing how to bury a body is expected to consult with other stakeholders, but is not legally bound to do so.
4. Where no executor is named, the person with the highest right to take out administration will have the same privilege as the executor in proposition 1.
5. The right of the surviving spouse or de facto spouse will be preferred to the right of children.
6. Where two or more persons have an equally ranking privilege, the practicalities of burial without unreasonable delay will decide the issue.
7. If a person dies in a situation where there is no competent person willing to bury the body, the householder where the death occurs has the responsibility for burying the body.
8. Cremation is nowadays equivalent to burial.
9. A person who expends funds in burying a body has a restitutionary action to recover his or her reasonable costs and expenses.
10. A right of burial is not an easement, but a licence: it is irrevocable once a body has been buried in the licensed plot.
11. The cemetery authority is able to make reasonable by-laws as to the maintenance of the appearance of the cemetery.
12. Subject to such by-laws, the holder of the right of burial has the power to decide on the appearance of the grave and headstone.
13. The reasonable cost of a reasonable headstone is recoverable from the deceased’s estate.
14. The holder of the right of burial cannot use his or her right in such a way 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 the grave.
15. After the death of the executor or administrator, the right to control the grave passes to the legal personal representative of the original deceased, not the legal personal representative of the holder of the right of burial.
At 699, his Honour said:
Thus the authorities show that the right to erect the headstone is the right of the person who owns the burial plot. The plaintiffs say that there is at least an equitable right for close blood relatives of the deceased to have themselves mentioned on the headstone or at least an additional headstone erected by them. The authorities show no such right. Subject to the rules and regulations of the cemetery, it is for the person with the burial right to choose the words of the headstone.
In Leeburn v Derndorfer [2004] VSC 172, Byrne J dealt with a dispute in relation to the disposition of ashes of the deceased where the executors were unable to agree. His Honour acknowledged the great debt owed to Young J for his writings in this area. At [15], his Honour noted:
15.It was submitted on behalf of the son that the decision of his sisters to dispose of the ashes at Yan Yean Cemetery was that of two only of the executors and was therefore ineffective. I do not think that there is any substance in this submission. Generally speaking, the act of any one of multiple executors with respect to estate property will bind the estate. In any event, the act of the two executrices in this case was not a dealing with respect to any property of the estate. … [Authority not cited.]
A similar comment could be made in relation to the case at hand.
At [32], his Honour refused the application for a number of discretionary reasons. [32] is in the following terms:
32.I decline to make the orders sought by Mr Leeburn for a number of essentially discretionary reasons. First and foremost, I am troubled by the long period of time which has been permitted to elapse since the death of the deceased. It was never satisfactorily explained to me why it took two years and nine months to institute this proceeding. The deceased’s remains have been permitted to lie at Yan Yean now for over four years. To my mind this is a very powerful reason for not disturbing them. Second, notwithstanding my sympathy for his position, I am not satisfied that the proper course is to divide the ashes as Mr Leeburn asks. This would violate the instincts of Mrs Derndorfer and offend members of her family for whom the Yan Yean Cemetery is considered an acceptable last resting place. While it may not be determinative, I cannot also ignore the fact that the majority of the executors have selected this location. I remind myself of the traditional reluctance of the Court to interfere with an executor’s decision on this matter. …
By analogy many of those comments could apply to this case and in relation to changing the wording of a tombstone that had been in place since 2007.
Finally, the Burial and Cremation Act 2013 (SA), which came into force in South Australia on 1 February 2014, has application. The transitional provisions relating to interment rights provide that an interment right granted before the commencement of this Schedule will be taken to be an interment right granted under this Act (as if this Act had been in force when the interment right was granted).
As to memorials, Section 39 of the Act provides as follows:
39—Ownership of memorial
(1)     For the purposes of the law of this State, a memorial to a deceased person in a cemetery, natural burial ground or other place of interment is the personal property of the person who holds the interment right in respect of the interment site where the memorial is situated.
(2)     However, the relevant authority for a cemetery or natural burial ground in which a memorial is situated may deal with and dispose of the memorial in accordance with this Act.
(3)     This section applies to memorials whether erected before or after the commencement of this Act.
In my view, this statutory provision adds force to a finding that the headstone is now the personal property of Nadia.
In any event, Maurizio’s expressed wishes over a long period of time were to have the headstone as he designed it and for additions (not alterations) after his death to be as discussed with his daughters. I am not persuaded those wishes changed before his death.
Maurizio was entitled to determine the wording on the headstone when he held the sole grant. It was his decision and his right to then describe the plaintiff as Davide.
Conclusion
The plaintiff’s claim is one that attracts some sympathy. However, this action must be determined according to the found facts and applicable law. For that reason there will be an order that the plaintiff’s action be dismissed. This order does not prevent the family, and in particular the owner of the interment rights and memorial, from accommodating the plaintiff in the future by agreement. This is a matter where the parties as children of Celestina and Maurizio might give consideration to the fact that their parents are now both deceased. They are the surviving family members. There would be value and commonsense in endeavouring to restore an amicable relationship between them in the future. However, that will be a matter for the parties after the heat of this action has dissipated.
For the foregoing reasons, the plaintiff’s application is dismissed. I will hear the parties as to costs if necessary, but my present view is that the costs follow the event and in those circumstances the plaintiff will likely be liable to pay the defendants’ costs of and incidental to the action.