MILENKOVIC -v- McCONNELL [2013] WASC 421

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASC 421
Case No:	CIV:2498/2013	Heard:	4, 18 OCTOBER & 14 NOVEMBER 2013
Coram:	McKECHNIE J	Delivered:	22/11/13
No of pages:	11	Judgment Part:	1 of 1
Result:	Injunctions discharged
Category:	A
PDF Version

Parties:	JOSETTE ANN MILENKOVIC EMMA CHRISTINA McCONNELL METROPOLITAN CEMETERIES BOARD
Catchwords:	Administration of deceased estates Right to dispose of ashes after cremation Principles in Smith v Tamworth City Council Extent to which they apply to cremations Whether there is an obligation to consult with other stakeholders
Legislation:	Administration Act 1903 (WA), s 4, s 24, s 45 Cemeteries Act 1986 (WA) Cremation Act 1929 (WA)
Case References:	Burrows v Cramley [2002] WASC 47 Leeburn v Derndorfer (2004) 14 VR 100 Robinson v Pinegrove Memorial Park Ltd & Swann (1986) 7 BPR 15,097 Smith v Tamworth City Council (1997) 41 NSWLR 680

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : MILENKOVIC -v- McCONNELL [2013] WASC 421 CORAM : McKECHNIE J HEARD : 4, 18 OCTOBER & 14 NOVEMBER 2013 DELIVERED : 22 NOVEMBER 2013 FILE NO/S : CIV 2498 of 2013 MATTER : IN THE MATTER OF THE ESTATE OF BRENT DWAYNE SLATTERY DECEASED

AND

IN THE MATTER OF SECTIONS 4, 24 AND 45 OF THE ADMINISTRATION ACT 1903

BETWEEN : JOSETTE ANN MILENKOVIC

Plaintiff

AND

EMMA CHRISTINA McCONNELL

First defendant

METROPOLITAN CEMETERIES BOARD

Second defendant

Catchwords:

Administration of deceased estates - Right to dispose of ashes after cremation - Principles in Smith v Tamworth City Council - Extent to which they apply to cremations - Whether there is an obligation to consult with other stakeholders

Legislation:

Administration Act 1903 (WA), s 4, s 24, s 45

Cemeteries Act 1986 (WA)
Cremation Act 1929 (WA)

Result:

Injunctions discharged

Category: A

Representation:

Counsel:

Plaintiff : Mr R E Lindsay & Ms R L O'Callaghan

First defendant : Mr M J Biesse

Second defendant : No appearance

Solicitors:

Plaintiff : Hayles Lawyers Pty Ltd

First defendant : Paynes

Second defendant : No appearance

Case(s) referred to in judgment(s):

Burrows v Cramley [2002] WASC 47
Leeburn v Derndorfer (2004) 14 VR 100
Robinson v Pinegrove Memorial Park Ltd & Swann (1986) 7 BPR 15,097
Smith v Tamworth City Council (1997) 41 NSWLR 680

McKECHNIE J

What this case is about

1 This is a case about what should happen to the ashes of a person who died suddenly leaving a mother, a sister, a brother, a partner and a small child. I suspect it is also a case about hurt feelings, grief and bitterness but the law has no remedies for those.

The events giving rise to the application

2 Brent Dwayne Slattery died in May this year at the age of 30. His death was unexpected.

3 He left behind a young partner Emma McConnell and their infant son Kobe. They live in Perth. His grieving mother Josette Milenkovic and sister Samantha live in South Australia.

4 Emma…

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 Milenkovic v McConnell

Details

AGLC: MILENKOVIC -v- McCONNELL [2013] WASC 421
Case: [2013] WASC 421
Decision Date: 22 NOVEMBER 2013

CaseChat Overview and Summary

The case of Milenkovic v McConnell, adjudicated by the Supreme Court of South Australia, involved a dispute concerning the administration of a deceased estate. Specifically, the case centred on the question of whether the executor of an estate had the right to dispose of the ashes of the deceased, and if there was an obligation to consult with other interested parties. The deceased, Mr Milenkovic, had left a will in which he instructed his executor, Mr McConnell, to scatter his ashes at a specified location. However, other family members objected to this decision, asserting that they should have been consulted before the ashes were disposed of. The court was required to determine the extent of the executor's rights in disposing of the ashes and whether there was a duty to consult with other stakeholders.

The legal issues before the court revolved around the interpretation of the will and the principles that govern the administration of estates, particularly in relation to the disposal of cremated remains. The court had to consider whether the executor's actions were consistent with the deceased's wishes as expressed in the will and whether there was a common law or statutory obligation to consult with other interested parties. The case hinged on whether the principles outlined in Smith v Tamworth City Council, which dealt with the disposal of remains in a cemetery, were applicable to the disposal of ashes from cremations.

The court concluded that the executor had the authority to dispose of the ashes in accordance with the deceased's instructions as outlined in the will. The court held that there was no obligation under the relevant legislation for the executor to consult with other stakeholders before disposing of the ashes. The court reasoned that the principles in Smith v Tamworth City Council were not directly applicable to cremations, as they pertained to burials and cemetery arrangements. The court emphasised that the executor's primary duty was to execute the will as written, and that other family members' wishes were not to be considered unless explicitly stated in the will. Consequently, the court discharged the injunctions sought by the other family members, allowing the executor to proceed with the disposal of the ashes as instructed.

Orders

Orders of the court

Injunctions discharged

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

Full text does not contain this section.