Maros v Luca

Case [2024] SASC 98

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Application)

MAROS & ANOR v LUCA & ORS

[2024] SASC 98

Judgment of the Honourable Justice Bampton  

SUCCESSION - PERSONAL REPRESENTATIVES - RIGHTS, POWERS AND DUTIES - DISPOSAL OF BODY

HEALTH LAW - BURIAL AND CREMATION - BODIES AND GRAVES

HEALTH LAW - BURIAL AND CREMATION - POWERS OF AUTHORITIES

The deceased died on 1 July 2024, survived by her husband who asserts he is her executor under a 1998 will, daughter, and son who asserts he is executor under a 2023 will – where the validity of the 2023 will is challenged and there is uncertainty as to the identity of the executor of the deceased’s estate – where there is a dispute regarding the method and place of disposal of the deceased’s remains – whether, in the circumstances of the deceased’s son’s objection to cremation, s 9(3) of the Burial and Cremation Act 2013 (SA) precludes cremation – whether there is evidence of the deceased’s wishes regarding disposal of her remains.

HELD: An order of the Court permitting cremation resolves any dispute such that an objection within the meaning of s 9(3) of the Burial and Cremation Act 2013 (SA) cannot be maintained – the first applicant is the person entitled to make decisions regarding the deceased’s remains – the third respondent is permanently restrained from releasing the deceased’s remains into the care, custody, or control of the first or second respondent or their agents – the first applicant be at liberty to retain the ashes of the deceased during his lifetime.

Coroners Act 2003 (SA) s 32; Burial and Cremation Act 2013 (SA) ss 3, 5, 7, 8, 9, 10, 11, referred to.
Calma v Sesar (1992) 106 FLR 446; Marschall v Elson [2023] SASCA 1; Marschall v Elson (No 2) [2023] SASCA 3, considered.

MAROS & ANOR v LUCA & ORS
[2024] SASC 98

Civil:  Application

  1. BAMPTON J:   Michael Maros (“Michael”) wishes to decide what happens to the body of his wife, Kathleen Anne Maros (“Dr Maros”), following her death on 1 July 2024.  He contends he is Dr Maros’ executor named in her last valid will made 13 August 1998 and codicil made 20 March 2020 (“the 1998 will and 2020 codicil”).  Michael seeks the cremation of Dr Maros’ body and to retain possession of her ashes until his death.  It is then his wish that his and Dr Maros’ ashes be mixed and scattered together, half in the ocean and half in the Wirrabara Forest, where Dr Maros grew up.

  2. Ammun Luca (“Ammun”), the son of Michael and Dr Maros, contends he and his wife Lisa Greig (“Lisa”) are Dr Maros’ lawful executors under a will signed by Dr Maros on 10 October 2023 (“the 2023 will”).  Ammun objects to cremation and wants Dr Maros’ body to be interred in a natural burial ground without the body having been prepared with chemical fluids.  Ammun asserts the possibility of a private burial on his “beautiful rural…

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AGLC
Maros v Luca [2024] SASC 98
Case
[2024] SASC 98
Decision Date

CaseChat Overview and Summary

The case of Maros v Luca involved the dispute over the disposal of Dr Maros's body, with her son, Ammun, asserting his right to determine the manner of her burial against the wishes of her husband and other family members. The South Australian Supreme Court was tasked with resolving this conflict. The central legal issue before the Court was identifying who had the authority to make decisions regarding the disposal of Dr Maros's body, particularly in light of her incapacity and the competing claims of her family members.

The Court of Appeal outlined several principles concerning the legal authority over the disposal of a deceased's body, including the principle that there is no property in a dead body, but the law may protect the lawful possession of a corpse. The Court also noted that while there is no obligation on a husband to cover the funeral expenses of his deceased wife, the duty to bury the body generally falls on the personal representative. In cases of intestacy, the person responsible for the burial may recoup expenses from the estate. The Court emphasised the importance of balancing the common law principles with practical considerations and the wishes of the deceased and their family, especially when considering cultural, spiritual, and religious factors.

The Court concluded that despite Ammun's assertion of his rights, the primary responsibility for making decisions about Dr Maros's burial lay with her husband, Michael, who was appointed as her substitute decision-maker in her enduring power of attorney for personal care and enduring power of attorney for financial matters. The Court found that Dr Maros's clear wishes, as evidenced by her instructions, supported Michael's role in this regard. The Court also acknowledged the entrenched family conflict and conflicting medical evidence but determined that there was insufficient evidence to conclude that Dr Maros lacked the capacity to execute the relevant documents.

The Court ordered that Michael, as Dr Maros's husband and her appointed substitute decision-maker, had the authority to make decisions regarding the disposal of her body, in accordance with her wishes and the legal principles outlined. The Court's decision underscored the importance of respecting the deceased's autonomy and the family dynamics involved in such sensitive matters.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

At the suggestion of the Public Advocate the Tribunal members visited Dr Maros in her respite accommodation on 29 February 2024 to explain the applications that had been made. The Tribunal recorded in its reasons dated 8 March 2024 that upon visiting Dr Maros:It was apparent that Dr Maros’ clear and consistent wish was for her husband to make decisions regarding all her affairs. She said she wanted to live wherever her husband lives. She said she could not live at home. She said she just wanted the conflict to stop and was very upset they could not get along. She said she does not see eye to eye with her son’s views on medical treatment. She said she loves all her family and wants them to visit her.The Tribunal’s observation of entrenched family conflict and conflicting medical evidence In addition to Dr Huang’s report and Dr Field’s report, the Tribunal heard evidence from Dr Turnbull and Dr Busuttil regarding their treatment of Dr Maros and their opinions to the effect Dr Maros had not lost capacity. The Tribunal noted there was conflicting medical evidence regarding Dr Maros’ ability to manage her health, safety and welfare and to manage her financial and legal affairs and there was conflicting medical evidence about her capacity to execute the 2023 EPA and the 2023 ACD. Further, the Tribunal noted there was entrenched family conflict between Alexandra and Michael on one hand and Ammun on the other about whether Dr Maros had mental incapacity, about decisions concerning her medical treatment, accommodation, services and access. It was noted there also were allegations of mismanagement and abuse. The Tribunal’s orders The Tribunal dismissed all three applications brought by Ammun. The application brought by Alexandra seeking a declaration that the 2023 ACD is invalid The Tribunal stated that while it had significant concerns regarding the creation of the 2023 EPA and 2023 ACD, given the allegations of abuse and coercion, on balance there was insufficient evidence to conclude that Dr Maros lacked competency to sign to documents. The Tribunal determined, despite the medical evidence of Dr Huang that Dr Maros lacked capacity and suffered a mixed-type of dementia, it was persuaded by Mr Rehberg’s evidence and the procedures he adopted in determining Dr Maros was competent to make the 2023 ACD. The Tribunal found Dr Maros was competent on 17 May 2023 to make the 2023 ACD and it was a valid document. The application brought by Alexandra to revoke the appointment of Ammun and Lisa in the 2023 ACD The Tribunal noted the 2023 ACD appointed Michael as sole substitute decision‑maker, with Ammun and Lisa to be appointed jointly if Michael dies or is unable or unwilling to act. The Tribunal recorded that Michael had reported that Ammun made decisions for Dr Maros as substitute decision-maker and had coerced Michael. The Tribunal stated Dr Maros’ directive clearly provided that the substitute decision‑maker was Michael while he was able and willing to act in this capacity. The Tribunal noted Michael wished to continue to be Dr Maros’ substitute decision‑maker, which was also Dr Maros’ clear wish.

Decision

Reasons for decision

The authorities concerning the legal principles applicable to the disposal of bodily remains spans several centuries. Those principles have been settled by the Court of Appeal in Marschall.[9]In reviewing past authorities, the Court of Appeal stated the key propositions in burial disputes appear to be:[10][9] [2023] SASCA 1.[10] [2023] SASCA 1 at [59].1.There is no property in a dead body, and it may not be owned by anyone. Nonetheless in certain circumstances the law may protect the lawful possession of a corpse or body parts.[11]2.When a person dies possessed of sufficient property, the duty of burying the body falls on his or her personal representative. Where there is a will, that is the executor or executrix named in the will. There is no longer any obligation in a husband to meet the reasonable funeral expenses of his deceased wife.[12]3.Where the deceased does not have the means to pay for burial, the occupier of the premises in which the person dies has the duty to cover the body and convey it for burial. That obligation extends to hospitals and medical facilities.[13]4.Where there is no executor named, but the deceased leaves an estate, the person entitled to administration is usually the person who is responsible for the burial of the body and for the payment of the funeral expenses. That person may recoup those expenses out of the estate.[14] 5.Where the deceased dies intestate, but there is no significant estate, or it is unlikely that an application will be made to take out letters of administration, the wishes of the person best placed to obtain an order for administration will not necessarily be accorded significant weight on account of that fact alone.[15] 6.Rather, in all cases involving intestacy, the proper approach requires a flexible balancing of common law principles and practical considerations, as well as attention to any cultural, spiritual and religious matters that are of importance on the evidence. This extends to taking into account, at the least, the wishes of the deceased and the members of the family of the deceased.[16]7.It is not always necessary to resolve all disputes that may emerge on the evidence, and the Court must be mindful that the dignity of the deceased,[17] and the conscience of the community,[18] require that a declaration as to the mode and place of burial be made promptly, albeit with all proper respect and decency for the interests of those involved.[19](Footnotes in original)Who is entitled to make the decision about the disposal of Dr Maros’ body?[11] Doodeward v Spence (1908) 6 CLR 406, 414 (Griffith CJ with whom Barton J agreed, Higgins J dissenting).[12] Jones v Dodd (1999) 73 SASR 328, [29] (Perry J, with whom Millhouse and Nyland JJ agreed). Cf Smith v Tamworth City Council (1997) 41 NSWLR 680, 691-692 (Young J).[13] Kate Falconer, “Reconceptualising the Law of the Dead by Expanding the Interests of the Living” (2019) 45(3) Monash University Law Review 757, 761 cites University Hospital Lewisham NHS Trust v Hamuth [2006] EWHC 1609 (Ch); Lakey v Medway NHS Foundation Trust [2009] EWHC 3574 (QB).[14] Smith v Tamworth City Council (1997) 41 NSWLR 680, 691 (Young J).[15] South Australia v Smith (2014) 119 SASR 247, [53] (Nicholson J).[16] South Australia v Smith (2014) 119 SASR 247, [34] (Nicholson J).[17] Burial and Cremation Act 2013 (SA) s 6; Minister for Families and Communities v Brown [2009] SASC 86 at [10].[18] Calma v Sesar (1992) 106 FLR 446, 452 (Martin J).[19] Calma v Sesar (1992) 106 FLR 466, 452 (Martin J).

Ratio Decidendi

Legal Principle Established

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