Milenkovic v McConnell

Case [2013] WASC 421


MILENKOVIC -v- McCONNELL [2013] WASC 421



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2013] WASC 421
Case No:CIV:2498/20134, 18 OCTOBER & 14 NOVEMBER 2013
Coram:McKECHNIE J22/11/13
11Judgment Part:1 of 1
Result: Injunctions discharged
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 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…

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

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

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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