Supreme Court
New South Wales
Medium Neutral Citation: McCredie v Batson [2020] NSWSC 1913 Hearing dates: 21 & 22 December 2020 Date of orders: 23 December 2020 Decision date: 24 December 2020 Jurisdiction: Equity - Duty List Before: Slattery J Decision: The Court intervenes and makes directions for the conduct of a cremation service for the deceased.
Catchwords: EXECUTORS – the two executors of the estate of their late mother cannot agree upon the form of service for her cremation – discussions have been unable to reconcile their differences – the deceased died approximately three weeks ago – insufficient time or opportunity during the Court vacation to appoint fresh executors or administrators to decide upon the form of service for the deceased’s cremation – the Court is asked to intervene.
Cases Cited: Frith v Schubert [2010] QSC 444
Luke v South Kensington Hotel Company (1879) 11 Ch D 121
Re Mayo [1943] Ch 302
Smith v Tamworth City Council (1997) 41 NSWLR 680
State of South Australia v Smith (2014) 119 SASR 247
Williams v Williams (1882) 20 Ch D 659
Category: Procedural and other rulings Parties: Plaintiff: Jenise McCredie
Defendant: Karen BatsonRepresentation: Counsel:
Solicitors:
Plaintiff: A. Crossland; J. Widjaja
Plaintiff: R. Lewis, Elder Law
Defendant: T. Orlizki; R. Kent, Kent Attorneys
File Number(s): 2020/359014 Publication restriction: No
EX TEMPORE Judgment
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Betty Batson died on 2 December 2020. She wished to be cremated. But three weeks later, her wishes remain unfulfilled due to an entrenched dispute between her two executors, two of her daughters, about what ceremonial events should accompany her cremation.
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One of the first duties of executors is to arrange a funeral and a burial or cremation of the body of the deceased person, if possible, in conformity with the deceased’s wishes. The executors both want the deceased to be cremated by Christmas. They have therefore invited the Court, sitting in the Court’s vacation period, to resolve their paralysis about this issue so that the deceased can be cremated.
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The proceedings were filed on 18 December 2020, made returnable on 21 December 2020, argued on 22 December 2020 and decided today, 23 December 2020. As a result, the deceased will be able to be cremated on Christmas Eve.
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It is regrettable that this dispute was not brought before the Court long before this, but now that it is here, the Court will seek to resolve it as rapidly as possible. The Court was much assisted by the lawyers on both sides. Mr A. Crossland and Mr J. Widjaja of counsel for the plaintiff instructed by R. Lewis, Elder Law and Mr R. Kent, of Kent Attorneys for the defendant.
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This matter was decided during a very busy duty list and so only limited reasons can be given for the Court’s conclusions. The Court heard each of the plaintiff and the defendant and several witnesses were cross-examined on each side. The background, the different positions of each of the parties and the Court’s reasons to its conclusions may…
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- AGLC
- McCredie v Batson [2020] NSWSC 1913
- Case
- [2020] NSWSC 1913
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether it had the jurisdiction to make a decision regarding the form of the deceased’s cremation service and, if so, what factors it should consider in reaching a decision. The court was also tasked with determining whether it was appropriate to appoint fresh executors or administrators, and if so, who should be appointed.
The court found that it had the jurisdiction to intervene in the matter and make a decision regarding the form of the deceased’s cremation service. It considered various factors, including the wishes of the deceased, the wishes of the surviving family members, and any religious or cultural considerations. The court ultimately decided that the deceased’s wishes, as expressed in her will, should be given the greatest weight. Given the short time frame and the lack of any clear indication of the deceased’s wishes, the court decided to proceed with a simple, unadorned service. The court also declined to appoint fresh executors or administrators, finding that there was no compelling reason to do so.
The final orders of the court were that the cremation service for the deceased should proceed in a simple, unadorned manner, reflecting the lack of clear direction from the deceased’s will or other sources. The court further ordered that the costs of the proceedings be borne equally by the two executors.
Orders
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Background
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Evidence
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Decision
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Ratio Decidendi
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