McCredie v Batson - [2020] NSWSC 1913

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 Batson
Representation:
Counsel:
Plaintiff: A. Crossland; J. Widjaja
Solicitors:
Plaintiff: R. Lewis, Elder Law
Defendant: T. Orlizki; R. Kent, Kent Attorneys

File Number(s): 2020/359014
Publication restriction: No

EX TEMPORE Judgment

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.
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.
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.
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.
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…

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 McCredie v Batson

Details

AGLC: McCredie v Batson [2020] NSWSC 1913
Case: [2020] NSWSC 1913
Decision Date: 24 December 2020

CaseChat Overview and Summary

The case of McCredie v Batson involved two siblings who were appointed as executors of their late mother’s estate. They found themselves at an impasse over the form of service for her cremation, unable to resolve their differences despite extensive discussions. The deceased had passed away approximately three weeks prior to the court hearing, leaving insufficient time during the court vacation period to appoint new executors or administrators to make this decision. Consequently, the court was asked to intervene to resolve the matter.

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