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Reece v Little

Reece v Little

Case [2009] WASC 30 16 February 2009

Statutory Interpretation

Burial Rights

Adverse Possession

Succession Law

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: REECE -v- LITTLE [2009] WASC 30

CORAM: TEMPLEMAN J

HEARD: 29 & 30 JANUARY 2009

DELIVERED : 16 FEBRUARY 2009

FILE NO/S: CIV 1181 of 2009

BETWEEN: MARY REECE
Plaintiff
AND
NOELLA LITTLE
Defendant

Catchwords:

Administration of estate - Application for letters of administration and for an order granting burial rights to deceased's body - Dispute over who should arrange funeral and where burial should occur - Necessity for quick and practical solution - Statutory condition that de facto spouse entitled to estate if relationship with deceased continued for the two years prior to death - Living arrangements of deceased - Whether statutory condition satisfied - Whether evidence of living arrangements outweighed by evidence of deceased's wishes, cultural factors, deceased's connection with alternative place of burial, mediation between the parties, or children's wishes

Legislation:

Administration Act 1903 (WA), s 25

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff: Mr T F Percy QC & Ms F Hamlett
Defendant: In person

Solicitors:

Plaintiff: Clayton Utz
Defendant: In person

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

Burrows v Cramley [2002] WASC 47
Calma v Sesar (1992) 106 FLR 446
In the Estate of Slattery (1909) 9 SR (NSW) 577
Jones v Dodd (1999) 73 SASR 328
Joseph v Dunn [2007] WASC 238
Smith v Tamworth City Council (1997) 41 NSWLR 680
Williams v Williams (1882) 20 Ch D 659

TEMPLEMAN J: The plaintiff is the mother of a man who died on 1 January 2009, aged 32 years, apparently of a heart attack.
The plaintiff, her late husband, and the deceased are and were respectively, Aboriginal people of Yamaji descent.
The defendant claims to have been in a long term de facto relationship with the deceased who was the father of her two children, Melissa aged 10 and Robert James (Robert Junior) aged 7. The defendant is also a person of Aboriginal descent.
A dispute has arisen between the plaintiff and the defendant about where the deceased's body should be buried. The plaintiff wishes to have the deceased's body buried in Geraldton, whereas the defendant wishes to have the burial take place in Mount Magnet, where she and her children reside.
I am told that the deceased's body is at present in the State Mortuary in Perth, where it has been in the custody of the coroner who investigated the cause of the deceased's death.
I am told also that the coroner has released the deceased's body to the defendant. I do not know the basis on which the coroner made that decision. However, it has prompted the plaintiff to apply for an order pursuant to s 45(1) of the Administration Act 1903 (WA) that letters of administration of the deceased's estate be granted to her, and that an order be made granting the plaintiff full control of the deceased's body.
The application is made by originating summons. The plaintiff has issued also, a chamber summons in which she seeks an order that…

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 Reece v Little

Details

AGLC: Reece v Little [2009] WASC 30
Case: [2009] WASC 30
Decision Date: 16 FEBRUARY 2009

CaseChat Overview and Summary

The case of Reece v Little involved an application for letters of administration and for an order granting burial rights to the body of a deceased person. The dispute centred around who should arrange the funeral and where the burial should occur. The matter was heard in the Supreme Court of Queensland.

The legal issues the court needed to address included the statutory condition that a de facto spouse is entitled to the estate if the relationship with the deceased continued for two years prior to death. The court also had to consider the living arrangements of the deceased, whether the statutory condition was satisfied, and whether evidence of the deceased's living arrangements was outweighed by other factors. These factors included the deceased's expressed wishes, cultural factors, the deceased's connection with an alternative place of burial, the outcome of mediation between the parties, and the wishes of the children.

The court found that while the statutory condition was met, the evidence of the deceased's wishes, cultural factors, and the connection with an alternative place of burial were compelling. The court also took into account the outcome of mediation between the parties and the wishes of the children. As a result, the application was dismissed, and no order was made for the grant of letters of administration or burial rights.

Orders

Orders of the court

Application dismissed

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.

Citations

AGLC Citation

Reece v Little [2009] WASC 30

Most Recent Citation

Mourish v Wynne [2009] WASC 85

Cases citing this decision · 8 of 8 shown

Pryor v Huata
[2024] WASC 13 Para 5

…f the State Coroner [58]; Dann v Office of the State Coroner [2020] WASC 486 [48]. [11] Dann v Office of the State Coroner [62]; Reece v Little [2009] WASC 30. [12] Britt v Office of the State Coroner [58]. [13] Britt v Office of the State Coroner [16] (Murphy & Beech JJA) [60] ‑ [61], [64] (Mitchell JA). [14] Br…
Hart v Cooper
[2023] WASC 132 Para 3

…8]; Dann v Office of the State Coroner [2020] WASC 486 [48]. [11] Dann v Office of the State Coroner [2020] WASC 486 [62]; Reece v Little [2009] WASC 30 [97]. Although the defendant accepted that the reference to 'very great weight' in Reece v Little was particular to the facts of that case (ts 46). [12] Britt v…
Dann v Office of the State Coroner
[2020] WASC 486 Para 1

…In Reece v Little ,[11] Templeman J remarked in that matter that the wishes of the deceased's children carried very great weight. [11] Reece v Little [2009] WASC 30 [97] (Templeman J).…
Milson v Milson
[2020] NSWSC 919 Para 25

…sed by the deceased are important and it has been said that the views of the deceased’s children should be given very great weight ( Reece v Little [2009] WASC 30 at [85], [86], [97] per Templeman J; see also State of South Australia v Smith [2014] SASC 64 at [72] per Nicholson J). But relevant religious, cultura…
Attwood v Office of the State Coroner
[2020] WASC 198 Para 3

…nn [2007] WASC 238 [21]; see also Burrows v Cramley [2002] WASC 47; Bertani v Bertani [2017] WASC 78; Garlett v Jones [2008] WASC 292; Reece v Little [2009] WASC 30; Mourish and Spratt .…
White v Williams
[2019] NSWSC 437 Para 26

…ldren should carry very great weight. In particular I note the decision of Templeman J in the Supreme Court of Western Australia, in Reece v Little [2009] WASC 30, where the wishes of the children were considered extremely important particularly in the context where their mother expressed the importance of visiti…
Frith v Schubert
[2010] QSC 444 Para 1

…th v Tamworth City Council (1987) 41 NSWLR 680, 690; though Young J there identifies some qualifications to this proposition. See also Reece v Little [2009] WASC 30 at [17].…
Mourish v Wynne
[2009] WASC 85 Para 1

…ed, WASC, Library No 990031; 27 January 1999); Burrows v Cramley ; Ugle v Bowra & O'Dea [2007] WASC 82; Joseph v Dunn [2007] WASC 238; Reece v Little [2009] WASC 30. I have also been referred to, and had regard to, a number of single judge judgments in other jurisdictions: Calma v Sesar (1992) 106 FLR 446; Smith…

View all 8 citing cases →

Cases cited in this decision · 8 of 8 shown

Joseph v Dunn
[2007] WASC 238 Para 7

…ss‑examination on affidavits - must be decided on the relevant papers. I respectfully agree with the approach taken by EM Heenan J in Joseph v Dunn [2007] WASC 238 [29] that disputes of this kind are to be determined on the merits, not by applying the well known tests for determining whether or not a court should…
Burrows v Cramley
[2002] WASC 47 Para 1

…rred to in subpar 3 above is not a principle of law 'it would have to be an extremely rare case to depart from the usual approach': Burrows v Cramley [2002] WASC 47 [27] (Pullin J). 5.If the case is contentious, then, even if the deceased's estate is small so that a grant of administration is unnecessary, the cou…
Williams v Williams
[1985] HCA 52 Para 1

…The following principles are well established: 1.There is no property in a dead body. That is to say, no one can own the body of a deceased person: Williams v Williams (1882) 20 Ch D 659, 663. 2.If the deceased person has made a will and named an executor, the person so named has the right to arrange for the burial of the de…
Calma v Sesar
[1992] NTSC 17 Para 1

…In Jones v Dodd [52], Perry J referred to the decision of Calma v Sesar (1992) 106 FLR 446 in which Martin J was required to decide whether the remains of a deceased son of the parties should be buried in Darwin or Port Hedland.…
I refer to two in particular, they are Smith v Tamworth City Council
[1997] NSWSC 197 Para 1

…made a will and named an executor, the person so named has the right to arrange for the burial of the deceased's body: Smith v Tamworth City Council (1997) 41 NSWLR 680 (Young J). 3.If the deceased has died intestate, that is, without having made a will, and has left an estate, the person entitled to a grant of admin…
Jones v Dodd
[1999] SASC 125 Para 1

…identify the person who is most likely to obtain the grant of administration: In the Estate of Slattery (1909) 9 SR (NSW) 577 applied in Jones v Dodd (1999) 73 SASR 328. 4.Although the common or usual approach referred to in subpar 3 above is not a principle of law 'it would have to be an extremely rare case to depar…
Smith v Tamworth City Council
113 ER 1007 Para 1

…. 2.If the deceased person has made a will and named an executor, the person so named has the right to arrange for the burial of the deceased's body: Smith v Tamworth City Council (1997) 41 NSWLR 680 (Young J). 3.If the deceased has died intestate, that is, without having made a will, and has left an estate, the person entitled to a g…
Jones v Dodd
138 ER 307 Para 1

…attempts to identify the person who is most likely to obtain the grant of administration: In the Estate of Slattery (1909) 9 SR (NSW) 577 applied in Jones v Dodd (1999) 73 SASR 328. 4.Although the common or usual approach referred to in subpar 3 above is not a principle of law 'it would have to be an extremely rare c…

Legislation cited in this decision · 1

Administration Act 1903 (WA)
25 2 mentions (from Para 6)