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Dayman v Dayman

Dayman v Dayman

Case [2024] NSWSC 838 10 July 2024

Standing

Inherent Jurisdiction

Separate Determination of Questions

Disposal of Remains

Alternative Dispute Resolution

Consensual Outcomes

Succession Law

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Dayman v Dayman [2024] NSWSC 838
Hearing dates: 20, 21, 24 June, 1, 5 July 2024
Date of orders: 5, 10 July 2024
Decision date: 10 July 2024
Jurisdiction: Equity
Before: Meek J
Decision:
Approval of arrangement agreed between parties in respect of separate question of the deceased’s ashes. Further notations and ancillary orders made.

Catchwords:
SUCCESSION — Funeral arrangements and disposal of deceased’s remains — Dispute between the plaintiff (an estranged daughter of the deceased) and the defendant (her mother, the deceased’s long-separated wife being the nominated executrix under a distant Will) in relation to funeral arrangements and disposal of the deceased’s remains by cremation after being held by the coroner — Plaintiff brought urgent application before the Court seeking, amongst other relief, release of the deceased’s body for immediate cremation, in circumstances where there was little clarity as to who had control or possession of the body or its the precise location — Subsequently, the plaintiff and the Court were informed by the funeral director that the deceased’s body had been cremated shortly before the plaintiff’s initial approach to the Court — After initial listings, it became apparent that the plaintiff’s claims could be separated between issues relating to the distribution of the deceased’s ashes (“ashes issues”) and other issues relating to probate and administration of the deceased’s estate (“probate and other issues”) — Given the need for the orderly disposal of the deceased’s remains with respect and without undue delay, it was appropriate to resolve the ashes issues in the first instance as a separate question — Following discussion with the parties and funeral director, an arrangement was made by consent in relation to the ashes issues, leaving the probate and other issues to be subsequently dealt with by the Court if the plaintiff still wished to agitate them
HEALTH — Burial and cremation — Sources of law — Discussion of the various provisions of legislation and the general law which bear upon burial law in NSW, including in the Coroners Act 2009 (NSW) (“Coroners Act”) and the Supreme Court’s inherent jurisdiction — In light of the extensive statutory provisions and general law which bear upon this area, the precise nature and extent of the authority of a person to arrange for the disposal of a deceased body, as well as any cognate issues which may arise, will necessarily be fact and issue specific — Discussion of issues that have previously arisen in caselaw
CORONIAL LAW — Jurisdiction — Discussion of the coroner’s role and jurisdiction in relation to reportable deaths and practice where there are disputes between interested parties as to the release and disposal of the deceased’s body — Discussion of the meaning of “inquest” and “senior next of kin” as those terms are used in the Coroners Act
SUCCESSION — Burial law — Discussion of the nature and purpose of the Court’s inherent jurisdiction to deal with the disposal of a deceased person’s remains…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dayman v Dayman

Details

AGLC: Dayman v Dayman [2024] NSWSC 838
Case: [2024] NSWSC 838
Decision Date: 10 July 2024

CaseChat Overview and Summary

The matter of Dayman v Dayman involved a dispute between the plaintiff, an estranged daughter, and the defendant, the mother and long-separated wife of the deceased, who was the nominated executrix under the deceased's Will. The dispute centred on funeral arrangements and the disposal of the deceased's remains by cremation, following the deceased's death and the coroner's holding of the body. The plaintiff brought an urgent application before the Court seeking the release of the deceased's body for immediate cremation, as there was little clarity regarding who had control or possession of the body or its precise location. However, it was later revealed that the deceased's body had been cremated shortly before the plaintiff's initial approach to the Court.

The legal issues that the Court needed to decide included the extent of the authority of a person to arrange for the disposal of a deceased body, the role and jurisdiction of the coroner in reportable deaths, and the nature and purpose of the Court's inherent jurisdiction to deal with the disposal of a deceased person's remains. Additionally, the Court needed to consider the merits of alternative dispute resolution methods, such as mediation, and the imperative of the orderly disposal of the deceased's remains with respect and without undue delay.

The Court concluded that the ashes issues should be resolved as a separate question due to the need for the orderly disposal of the deceased's remains. After discussions with the parties and the funeral director, an arrangement was made by consent in relation to the ashes issues. The probate and other issues were left to be subsequently dealt with by the Court if the plaintiff still wished to agitate them. The Court explored the various statutory provisions and general law which bear upon burial law in New South Wales, including the Coroners Act 2009 (NSW) and the Supreme Court's inherent jurisdiction. The Court also examined the coroner's role and jurisdiction in relation to reportable deaths and the meaning of "inquest" and "senior next of kin" as those terms are used in the Coroners Act.

The Court determined that the ashes issues should be dealt with first to ensure the respectful and timely disposal of the deceased's remains. The parties reached a consensual outcome regarding the ashes issues, and the probate and other issues were left to be addressed if the plaintiff still wished to pursue them. The Court also explored the merits of alternative dispute resolution methods, such as mediation, and considered the imperative of the orderly disposal of the deceased's remains with respect and without undue delay.

Orders