Laing v Laing - [2014] QSC 194

SUPREME COURT OF QUEENSLAND

CITATION:

Laing v Laing [2014] QSC 194

PARTIES:

ANDREW MARK JAMES LAING
(applicant)
v
TRACEY LEIGH LAING
(first respondent)
and
PUBLIC TRUSTEE OF QUEENSLAND

(second respondent)

FILE NO/S:

BS7197 of 2014

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

22 August 2014

DELIVERED AT:

Brisbane

HEARING DATE:

8 August 2014

JUDGE:

Atkinson J

ORDERS:

1. Pursuant to section 6 of the Succession Act 1981, I direct that the body of James Lindsay Laing, deceased, be released to his son, Andrew Mark James Laing, for the purpose of a funeral and subsequent burial at Gungahlin Cemetery, Mitchell, the Australian Capital Territory.

2. Subject to formal requirements of the registrar, a grant of representation of the estate of James Lindsay Laing, deceased, be made to the Public Trustee of Queensland limited to collecting the deceased’s estate, paying his debts and preserving the estate until further order.

3. That the costs of the Public Trustee of Queensland of, and incidental to, this application be assessed and paid out of the deceased’s estate on an indemnity basis.

CATCHWORDS:

SUCCESSION – PERSONAL REPRESENTATIVES – RIGHTS POWERS AND DUTIES – DISPOSAL OF BODY – where the deceased had executed three Wills – where the validity of the Wills and identity of the executor or personal representative was uncertain – where the applicant applied for a limited grant of administration of the estate for the purpose of burying the deceased – where the applicant was one of the deceased’s three children – where the second respondent was the deceased’s second wife – where the applicant sought to bury the deceased in a double plot next to the applicant’s mother in Canberra, the Australian Capital Territory – where the first respondent sought to cremate the deceased in Queensland – whether the body of the deceased should be released to the applicant for the purpose of burying the deceased in Canberra

Cremations Act 2003 (Qld), s 7, s 8

Succession Act 1981 (Qld), s 6

Reid & Ors v Crimp & Ors [2004] QSC 304

COUNSEL:

R M Treston QC for the applicant
The first respondent appeared on her own behalf

R Whiteford for the second respondent

SOLICITORS:

Delaney & Delaney Solicitors for the applicant
The first respondent appeared on her own behalf
Official Solicitor for the Public Trustee of Queensland for the second respondent

On 8 August 2014 I made the following orders in this application:

"(1)Pursuant to section 6 of the Succession Act 1981, I direct that the body of James Lindsay Laing, deceased, be released to his son, Andrew Mark James Laing, for the purpose of a funeral and subsequent burial at Gungahlin Cemetery, Mitchell, the Australian Capital Territory.
(2)Subject to formal requirements of the registrar, a grant of representation of the estate of James Lindsay Laing, deceased, be made to the Public Trustee of Queensland limited to collecting the deceased’s estate, paying his debts and preserving the estate until further order.
(3)That the costs of the Public Trustee of Queensland of, and…

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 Laing v Laing

Details

AGLC: Laing v Laing [2014] QSC 194
Case: [2014] QSC 194
Decision Date: 22 August 2014

CaseChat Overview and Summary

The court was asked to decide who should have custody of the body of James Lindsay Laing, the deceased, for the purpose of burial. The deceased had executed three Wills, but the validity of these Wills and the identity of the executor or personal representative were uncertain. The applicant, Andrew Mark James Laing, one of the deceased’s three children, sought to bury the deceased in a double plot next to the applicant’s mother in Canberra, the Australian Capital Territory. The second respondent, the deceased’s second wife, sought to cremate the deceased in Queensland. The court had to determine whether the body of the deceased should be released to the applicant for the purpose of burying the deceased in Canberra.

The court considered the circumstances of the case and the competing interests of the applicant and the second respondent. The court found that the applicant had a legitimate interest in burying the deceased in Canberra, as it would allow the deceased to be buried next to the applicant’s mother. The court also found that the second respondent’s desire to cremate the deceased in Queensland was not unreasonable, but that it was not as strong as the applicant’s interest in burying the deceased in Canberra. The court noted that the deceased had expressed a desire to be buried in Canberra, and that this was an important factor in the court’s decision.

The court directed that the body of the deceased be released to the applicant for the purpose of a funeral and subsequent burial at Gungahlin Cemetery, Mitchell, the Australian Capital Territory. The court also directed that a grant of representation of the estate of the deceased be made to the Public Trustee of Queensland limited to collecting the deceased’s estate, paying his debts and preserving the estate until further order. The court ordered that the costs of the Public Trustee of Queensland of, and incidental to, this application be assessed and paid out of the deceased’s estate on an indemnity basis.

Orders

Orders of the court

1. Pursuant to section 6 of the Succession Act 1981, I direct that the body of James Lindsay Laing, deceased, be released to his son, Andrew Mark James Laing, for the purpose of a funeral and subsequent burial at Gungahlin Cemetery, Mitchell, the Australian Capital Territory.

2. Subject to formal requirements of the registrar, a grant of representation of the estate of James Lindsay Laing, deceased, be made to the Public Trustee of Queensland limited to collecting the deceased’s estate, paying his debts and preserving the estate until further order.

3. That the costs of the Public Trustee of Queensland of, and incidental to, this application be assessed and paid out of the deceased’s estate on an indemnity basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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CITATION:	Laing v Laing [2014] QSC 194
PARTIES:	ANDREW MARK JAMES LAING (applicant) v TRACEY LEIGH LAING (first respondent) and PUBLIC TRUSTEE OF QUEENSLAND (second respondent)
FILE NO/S:	BS7197 of 2014
DIVISION:	Trial Division
PROCEEDING:	Application
DELIVERED ON:	22 August 2014
DELIVERED AT:	Brisbane
HEARING DATE:	8 August 2014
JUDGE:	Atkinson J
ORDERS:	1. Pursuant to section 6 of the Succession Act 1981, I direct that the body of James Lindsay Laing, deceased, be released to his son, Andrew Mark James Laing, for the purpose of a funeral and subsequent burial at Gungahlin Cemetery, Mitchell, the Australian Capital Territory. 2. Subject to formal requirements of the registrar, a grant of representation of the estate of James Lindsay Laing, deceased, be made to the Public Trustee of Queensland limited to collecting the deceased’s estate, paying his debts and preserving the estate until further order. 3. That the costs of the Public Trustee of Queensland of, and incidental to, this application be assessed and paid out of the deceased’s estate on an indemnity basis.
CATCHWORDS:	SUCCESSION – PERSONAL REPRESENTATIVES – RIGHTS POWERS AND DUTIES – DISPOSAL OF BODY – where the deceased had executed three Wills – where the validity of the Wills and identity of the executor or personal representative was uncertain – where the applicant applied for a limited grant of administration of the estate for the purpose of burying the deceased – where the applicant was one of the deceased’s three children – where the second respondent was the deceased’s second wife – where the applicant sought to bury the deceased in a double plot next to the applicant’s mother in Canberra, the Australian Capital Territory – where the first respondent sought to cremate the deceased in Queensland – whether the body of the deceased should be released to the applicant for the purpose of burying the deceased in Canberra Cremations Act 2003 (Qld), s 7, s 8 Succession Act 1981 (Qld), s 6 Reid & Ors v Crimp & Ors [2004] QSC 304
COUNSEL:	R M Treston QC for the applicant The first respondent appeared on her own behalf R Whiteford for the second respondent
SOLICITORS:	Delaney & Delaney Solicitors for the applicant The first respondent appeared on her own behalf Official Solicitor for the Public Trustee of Queensland for the second respondent