Re: John Anthony Lochowiak (deceased) No. Scgrg-97-1201 Judgment No. 6301 Number of Pages 3 Executors and Administrators

[1997] SASC 6301

IN THE SUPREME COURT OF SOUTH AUSTRALIA

DEBELLE J

Executors and administrators - rights, powers and duties - burial, and erection of tombstones - funeral arrangements - injunction sought to restrain funeral by eldest son of deceased - doubts as to existence of will. Son entitled to apply for Letter of Administration - interlocutory injunction granted. Calma v Sesar (1992) 2 NTLR 237; Burnes v Richards (unreported, Supreme Court of New South Wales, Cohen J, 6 October 1993 ; Robertson v Pinegrove Memorial Park Ltd [1986] ACLD 496; Beard v Baulkham Hill Shire Council (1986) & NSWLR 273, applied.

ADELAIDE, 8 August 1997 (hearing and decision)

#DATE 8:8:1997

#ADD 4:9:1997

Plaintiff:

Counsel: Mr C J Charles

Solicitors: Aboriginal Legal Rights Movement

Order: application allowed.

DEBELLE J

This application for an interlocutory injunction involves matters of considerable sensitivity. It concerns the funeral arrangements of the late Bogdan Lochowiak who died on 5 August 1997. The plaintiff is the eldest son of the deceased.

The plaintiff's father was born in Europe. The plaintiff's mother is an Aborigine. The plaintiff is an Aboriginal person by descent from his mother. His parents were married in Adelaide in 1960. There were three children of the marriage, the plaintiff and his two younger sisters. The family lived in Coober Pedy where the plaintiff's father was employed as a truck driver. His parents lived there together for some 30 years. His parents own a house at Coober Pedy. Unfortunately the plaintiff's parents separated and were ultimately divorced. The final order dissolving the marriage was made in January 1997. Although the plaintiff's parents had made mutual wills, the plaintiff believes that his father has revoked his will upon the dissolution of the marriage.

The plaintiff believes that his father had, for some time before the final dissolution of the marriage and since, lived in a defacto relationship with a woman called Ms Veerla Heymans. He knows that Ms Heymans occupied a house in Adelaide owned by his father.

The plaintiff believes that his father has not made a fresh will and that he is the person entitled to apply for a grant of Letters of Administration. The plaintiff has made inquiries and believes that Ms Heymans has arranged for his father to be cremated on the afternoon of Monday next, 11 August. He believes that the undertaker is Simplicity Funerals Pty Ltd. The funeral has not been advertised. According to the plaintiff, Ms Heymans refuses to communicate with his mother or with other members of his family concerning the funeral arrangements. The plaintiff seeks to restrain the funeral until proper arrangements have been made so to enable family and friends can attend.

The plaintiff says that his father was a popular man and well-known in Coober Pedy. He believes that many people would wish to attend his funeral. He also says that his father was a member of the Roman Catholic Church and, as a matter of religious belief, he did not wish to be cremated. His concern is that if the funeral proceeds, his father would be cremated and the friends of his father and other members of the family will not be able to attend the funeral service.

The position as to the estate of the deceased is not certain. It is not clear whether he has left a will and, if so, who is the executor named in the will. In the absence of the will, the plaintiff's son is entitled to apply for Letters of Administration but it is not certain whether he is the only person entitled to do so.

The right to the possession of a dead body for burial is a justiciable issue: Calma v Sesar (1992) 2 NTLR 237, and Burnes v Richards (unreported, Supreme Court of New South Wales, Cohen J, 6 October 1993). An executor has a right to the possession of the body of a deceased person for the purposes of its lawful disposal by burial: Robertson v Pinegrove Memorial Park Limited [1986] ACLD 496. See also Beard v Baulkham Hill Shire Council (1986) 7 NSWLR
273 at 280. Such a right should, I think, be available to the person entitled to the grant of Letters of Administration.

A court is, understandably, reluctant to enter into sensitive disputes of this kind which, clearly, involve emotional issues of a high degree. There may well be competing spiritual and cultural values as between the protagonists which is very difficult for a court to resolve. It is also desirable that there be no undue delay in making appropriate funeral arrangements. In that last respect, it is to be noted that the plaintiff not only gives the usual undertaking as to damages but he also undertakes promptly to arrange for a funeral and to pay the costs of the funeral.

I must be satisfied that there is a serious question to be tried before ordering an interlocutory injunction. As the plaintiff is entitled, in the absence of a will, to apply for a grant of Letters of Administration, there is a serious question as to whether he is, in fact, entitled to have the right to possession of the body of his deceased father for the purposes of making funeral arrangements.

I must also have regard to the balance of convenience. Plainly, the proper sensitivities of the plaintiff and his family will be severely impaired if the funeral proceeds without members of the family, their friends and others who knew the deceased being present. There will be no undue delay in being able properly to dispose of the body of the deceased because of the plaintiff's undertaking to make prompt funeral arrangements and to pay the costs of the funeral. The balance of convenience, plainly, favours the grant of an interlocutory injunction.

For these reasons, I grant the injunction which has been sought. There will be an order in terms of the altered and initialled minutes.