Reece v Little

Case [2009] WASC 30


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

  1. TEMPLEMAN J:  The plaintiff is the mother of a man who died on 1 January 2009, aged 32 years, apparently of a heart attack.

  2. The plaintiff, her late husband, and the deceased are and were respectively, Aboriginal people of Yamaji descent.

  3. 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.

  4. 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.

  5. 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.

  6. 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.

  7. The application is made by originating summons. The plaintiff has issued also, a chamber summons in which she seeks an order that…

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Reece v Little [2009] WASC 30
Case
[2009] WASC 30
Decision Date

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

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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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