Gus Kak v Allison Sarah Kak (née Boman)

[2020] NSWSC 140

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Gus Kak v Allison Sarah Kak (née Boman) [2020] NSWSC 140
Hearing dates:	24 February 2020
Decision date:	26 February 2020
Jurisdiction:	Equity
Before:	Hammerschlag J
Decision:	Summons is dismissed The Court orders that Allison Sarah Kak is entitled to have the body of Omar Kak released to her for the purpose of making burial arrangements The Deputy State Coroner is at liberty to release the body accordingly
Catchwords:	Burial rights – contest between brother of the deceased and wife of the deceased as to burial –deceased professed both Muslim and Catholic faiths – where plaintiff and relatives profess Muslim faith and defendant wife professes Catholic faith – inappropriate for Court to determine the matter by reference to respective strengths of the commitment of the deceased to each faith – primary rule is that right to determine burial goes to sole executrix – no reason to depart from it.
Cases Cited:	Smith v Tamworth City Council (1997) 41 NSWLR 680 Jones v Dodd (1999) 73 SASR 328 Dodd v Jones [1999] SASC 458 Keller v Keller (2007) 15 VR 667 AB v CD [2007] NSWSC 1474 South Australia v Smith (2014) 119 SASR 247 Darcy v Duckett [2016] NSWSC 1756 White v Williams (2019) 99 NSWLR 539
Category:	Principal judgment
Parties:	Gus Kak - Plaintiff Cross-Defendant Allison Sarah Kak (née Boman) - First Defendant Cross-Claimant Deputy State Coroner Truscott - Second Defendant
Representation:	Counsel: J.D. Cook - Plaintiff Cross-Defendant A.F. Stevens - First Defendant Cross-Claimant Second Defendant submitting appearance   Solicitors: Kammoun Sukari Lawyers - Plaintiff Cross-Defendant Gibson Howlin Lawyers - First Defendant Cross-Claimant Crown Solicitor for NSW - Second Defendant
File Number(s):	2020/55921

Judgment

1. HIS HONOUR:   This is a contest as to who has the right to arrange the burial of the late Omar Kak, who passed away on 13 February 2020. The deceased was referred to by the contestants as “Omar”. I shall do the same, with no disrespect intended. By all accounts, Omar took his own life.

2. Omar was born into a Muslim family and the Muslim tradition. The first defendant cross-claimant (to whom I shall refer to as Allison, also with no disrespect intended) was born into a Roman Catholic family and the Roman Catholic tradition.

3. Omar and Allison commenced a relationship in 1999 when he was 22 and she was 18.

4. There was tension between their respective families. There still is.

5. On the one hand, in 2006, Allison took on the Muslim faith after reciting the acclamation known as the Shahada before Sheikh Moussaab Ali Legha in a private ceremony. Omar and Allison then immediately married according to Islamic law. Usually, according to Muslim tradition, there would have been a subsequent public celebration. However, presumably because of tensions, this did not happen.

6. On the other hand, in 2008, Omar and Allison were married in a church in Woolwich under Roman Catholic rites. It seems that because, contrary to Islam, alcohol was to be served, Omar’s family did not attend the subsequent celebration.

7. There are two children born of the marriage. According to Father Kevin Bates, the parish priest, Omar was a regular participant at the church with Allison and their children. One of their children was baptised in 2014. Omar apparently expressed to Father Bates a desire to be baptised into the Catholic Church but this did not happen before he died.

8. Omar’s body is currently being held by the State Coroner pending the Court’s ruling.

9. Omar left a will which he made on 9 September 2010, under which he appointed Allison sole executrix and beneficiary of his estate. Probate has not yet been granted to Allison but there is no suggestion that this will not occur in due course.

10. The plaintiff cross-defendant is Omar’s brother, Gus Kak. I shall refer to him as Gus, no disrespect intended. Gus moves the Court for an order that he be granted a special grant of administration limited to custody of Omar’s body and authorisation to arrange Omar’s burial. In the alternative, he seeks an order that the Coroner be at liberty to release Omar’s remains into his custody to enable him to carry out the funeral arrangements and dispose of the remains.

11. By cross-summons, Allison seeks corresponding orders in her favour.

12. Gus and other relatives of Omar want a Muslim burial. Gus says that if Omar is not buried in accordance with Islamic faith, he and the family will not visit Omar for the purpose of remembering and praying for him because it will be a desecration to Omar as a person. He does not want people to speak that they saw him or his family attending a Christian cemetery as it is against the Islamic faith to pray for a person who died as a Christian.

13. Allison says that Omar always told her that his burial wishes were that his funeral be held at the church where they were married and that he be buried at Woronora cemetery. She has reserved a plot. She says that she is concerned that if Omar was to be buried other than in accordance with his wishes, that this would impact upon their children. She says their children have only known Omar as a practising Catholic. Allison believes that to see him buried in an unfamiliar location in accordance with an unfamiliar religion and surrounded by unfamiliar people would be detrimental to them. She says that at Omar’s request, their children never met his family.

14. Much of the evidence is directed to whether Omar kept his Muslim faith or accepted Catholicism. The fact is, he did both. He maintained a connection with Islam but also embraced Catholicism. I am not in a position, nor would I consider it appropriate even if I was in a position, to assess the relative strengths of his faith or loyalty to the respective faiths.

15. The decisive consideration here is that Omar appointed Allison to be his sole executrix. Ordinarily, the named executor or executrix has the right to arrange for the disposition of the deceased’s body if that person is ready, willing and able to do so: Keller v Keller (2007) 15 VR 667, 669 [10]-[12]. Allison is ready, willing and able to do so. There is no reason to depart from this, and every good reason to adhere to it.

16. There is no contest that Omar wished to be buried in a family plot at Woronora and that the burial may take place there.

17. Towards the end of argument, Counsel for Gus proposed that a practical compromise would be for a Catholic burial to be given to Omar, but that the Kak family be given access to Omar’s remains to permit the carrying out of Islamic pre-burial rituals and for Omar to be buried facing Mecca in accordance with Muslim tradition. He suggested that such conditions might be imposed on the release of Omar to Allison.

18. Even if it was within my jurisdiction to impose such conditions, I would not impose them because it is for Allison to arrange the burial as she considers appropriate and the proposal could be considered to be an unexplained departure from principles to which adherence was said to be required.

19. Nevertheless, there are repeated statements in the authorities that the person with the privilege to arrange the burial, although not being bound to do so, is expected to consult with other stakeholders. See: Smith v Tamworth City Council (1997) 41 NSWLR 680, 693-4; Jones v Dodd (1999) 73 SASR 328, 336 at [51]; Dodd v Jones [1999] SASC 458 at [40]-[41]; AB v CD [2007] NSWSC 1474 at [31]; South Australia v Smith (2014) 119 SASR 247, 265 at [74]; Darcy v Duckett [2016] NSWSC 1756 at [34]; White v Williams (2019) 99 NSWLR 539, 560 at [111]-[113].

20. The summons is dismissed.

21. The Court orders that Allison Sarah Kak is entitled to have the body of Omar Kak released to her for the purpose of making burial arrangements.

22. It follows that the Deputy State Coroner (who filed a submitting appearance) is at liberty to release the body to Allison. I will hear the parties on costs if this is necessary.

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Amendments

27 February 2020 - corrected coversheet

Decision last updated: 27 February 2020