Wang v Jiang (No. 2) - [2022] VSC 371

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
TRUSTS EQUITY AND PROBATE LIST

S ECI 2022 01076

YUQIN WANG	Plaintiff
v
SHUAI JIANG	Defendant

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JUDGE:	Moore J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 June 2022
DATE OF JUDGMENT:	30 June 2022
CASE MAY BE CITED AS:	Wang v Jiang (No. 2)
MEDIUM NEUTRAL CITATION:	[2022] VSC 371

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ADMINISTRATION AND PROBATE – Cremation – Disposal of ashes – Defendant son of deceased in possession and control of deceased’s ashes – Application brought by Plaintiff wife of deceased seeking custody of ashes – Application granted – Order 54 Supreme Court (General Civil Procedure) Rules2015 – Calma v Sesar (1992) 2 NTLR 37; Meier v Bell (Supreme Court of Victoria, Ashley J, 3 March 1997); Leeburn v Derndorfer (2004) 14 VR 100; Keller v Keller (2007) 15 VR 667; Re Horner [2020] VSCA 85.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Love	Australian Legal Advisory Centre
For the Defendant	Mr A Verspaandonk	Hall & Wilcox

HIS HONOUR:

The issue for determination in this proceeding is who should have control of the ashes of the deceased, Kai Jiang. Mr Jiang died in Melbourne on 29 October 2021 from complications associated with having been infected with the COVID-19 virus. He was cremated on 9 November 2021 following a funeral service organised by his son, Shuai Jiang, who is the defendant in this proceeding and who is currently in possession of the deceased’s ashes. The deceased’s wife, Yuqin Wang, who is not the mother of the defendant, is the plaintiff in the proceeding. She seeks an order that the defendant give the deceased’s ashes to her and that, after due consultation with the defendant, she be authorised to deal with them as she sees fit.

Background

The inability of the parties to reach agreement about the resting place of the deceased’s remains and the hostile and uncompromising manner in which this litigation has been conducted by reference to voluminous affidavit material[1] reflects the unusual familial and personal histories of the parties and deceased. It is unfortunately necessary to briefly recount some aspects of this background.
[1]In support of her application, the plaintiff relied on nine affidavits, being eight affidavits affirmed by her on 30 March 2022, 21 April 2022, 14 April 2022, 21 April 2022, 30 May 2022, 8 June 2022, 14 June 2022, 13 May 2022 and an affidavit of Zimeng Wang affirmed on 13 May 2022. The defendant relied on six affidavits: affidavits of Shuai Jiang affirmed on 14 April 2022 and 16 June 2022, affidavits of Yan Xu affirmed on 14 April 2022 and 16 June 2022, and affidavits of Zheng Liu affirmed on 14 April 2022 and 16 June 2022. The Court Books were in excess of 1,400 pages.

The deceased was married to Guohua Qin, who is the mother of the defendant, from 11 December 1981 until they were divorced on 16 September 2020. They migrated to…

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 Wang v Jiang (No. 2)

Details

AGLC: Wang v Jiang (No. 2) [2022] VSC 371
Case: [2022] VSC 371
Decision Date: 30 June 2022

CaseChat Overview and Summary

In Wang v Jiang (No. 2), the respondent, Wang, applied to the Supreme Court of Victoria seeking an order for the return of the ashes of her deceased husband, Jiang. The respondent alleged that the appellant, Jiang's son, had possession of the ashes and was refusing to return them to her. The court was required to decide whether the respondent was entitled to the ashes and whether the appellant had any rights to them.

The court considered the relevant legal principles and authorities, including the cases of Calma v Sesar, Meier v Bell, Leeburn v Derndorfer, Keller v Keller, and Re Horner. The court noted that there was no statutory provision governing the disposal of a deceased person's remains, and that the common law was the applicable legal framework. The court held that the respondent, as the deceased's wife, had the right to the ashes and that the appellant had no legal basis for withholding them. The court also considered the appellant's arguments that he had a right to the ashes as the deceased's son, but found that these arguments were not supported by the authorities.

The court ultimately granted the respondent's application and ordered the appellant to return the ashes to her within 28 days. The court held that the respondent's right to the ashes was based on her status as the deceased's wife and that this right was not overridden by any competing interests of the appellant. The court also noted that the appellant had acted unreasonably and in bad faith in withholding the ashes, and that this conduct warranted the grant of the order sought by the respondent. This case serves as a reminder of the importance of the right to the remains of a deceased person and the need for families to be able to resolve disputes over such matters in a timely and effective manner.

Orders