Wang v Jiang (No. 2)
[2022] VSC 371
•30 June 2022
| 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 |
---
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 |
---
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.
---
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 Australia in about 2005.
About a month after his divorce from Guohua Qin, the deceased married the plaintiff on 19 October 2020. However, the plaintiff has deposed that she and the deceased had maintained an intimate relationship for many years while the deceased was married to Guohua Qin. Their relationship commenced in the early 1990s when she worked as a live-in nanny for the deceased and Guohua Qin; the plaintiff looked after the defendant who was then a child.
On 3 July 2002, when the deceased was married to Guohua Qin, the plaintiff had a daughter, Zimeng Wang. The evidence before me indicates that the deceased was the father of Zimeng Wang.
There is evidence to which I will later return about a serious incident of domestic violence which occurred in Melbourne in about mid-2014 and which involved the deceased, Guohua Qin and the defendant. The plaintiff’s evidence is that, from this time onwards, she lived with the deceased in China in a domestic relationship, even though the deceased remained married to Guohua Qin and continued to have contact with her and with the defendant. The defendant’s evidence, which was disputed by the plaintiff, was that he lived in China with the deceased in his grandparents’ house from late 2018.
The plaintiff deposed that, in 2019, she and the deceased decided to relocate to Australia as a couple with a view to joining Zimeng Wang who was enrolled there as a student. The deceased and Guohua Qin were divorced in September 2020 and the plaintiff and the deceased married soon after. The defendant’s evidence was that he was not aware that the deceased and the plaintiff had married, nor that they had previously had a child together in 2002.
After they were married, the plaintiff and the deceased lived together in Melbourne until the deceased died just over 12 months later.
The deceased’ s death and subsequent events
The plaintiff, the deceased and Zimeng Wang all contracted COVID-19 in February or March 2021. Although the plaintiff and Zimeng Wang suffered only relatively minor symptoms, the deceased eventually became seriously ill and was hospitalised. The plaintiff has deposed that, because she and Zimeng Wang were infected with COVID-19 while the deceased was in hospital, they were not permitted to visit the deceased; other than one in-person visit on the day before he died, their only contact with the deceased during this time was by telephone.
The defendant was, however, able to visit the deceased in hospital in the days shortly before his death on 29 October 2021. The defendant deposed that he prayed by his father’s bedside in these visits and after he died. The defendant’s evidence was that he is a Buddhist and that the deceased became an adherent of Buddhism from about 2014. The plaintiff denied that the deceased was a Buddhist and deposed that he had never expressed any belief in or attachment to the religion of Buddhism. Her evidence was that the deceased was non-religious.
After the deceased died, the defendant arranged for a firm of funeral directors to collect his father’s body from hospital. The plaintiff and the defendant did not have any direct communications about the funeral arrangements for the deceased. However, the day after the deceased died, the plaintiff contacted a relative of the defendant, Zheng Liu, who told her that the defendant was dealing with the funeral arrangements and that she need not worry. The plaintiff’s evidence was that Zheng Liu assured her that ‘they would keep [her] informed and allow [her] to decide what would become of Kai’s body in good time’. Zimeng Wang told Zheng Liu that she and the plaintiff were COVID-19-postive and would not be able to attend the funeral. Zheng Liu also asked the plaintiff to provide the defendant with the deceased’s passport in order to facilitate the arrangements; the plaintiff did so.
The plaintiff was also contacted by the deceased’s sister and asked if she would allow the defendant to manage the funeral on her behalf because the plaintiff did not speak English, had ‘no knowledge of Australian culture’ and they wanted the deceased to be laid to rest ‘without unpleasantness’. The plaintiff has deposed that she did not agree to this request, but felt powerless to do anything about it because the defendant was in control of the deceased’s body and the funeral arrangements.
On about 8 November 2021, Zheng Liu informed Zimeng Wang about the location of the deceased’s funeral to be held the following day and where he was to be cremated.
A funeral service for the deceased, conducted in accordance which Buddhist practices and traditions, was held on 9 November 2021. Zheng Liu sent photographs of the service to Zimeng Wang throughout the ceremony. The plaintiff deposed that she was able to view the funeral by WeChat and that the defendant ‘made efforts to have a good farewell for Kai’ and that she felt relief. However, in a later affidavit, the plaintiff deposed to her view that the deceased would be offended by the Buddhist ceremony which was conducted and that she remained very upset about the funeral service because the rituals and prayers which were observed were not things which she considered had meaning for the deceased.
After the funeral (which was paid for by the defendant), the defendant did not inform the plaintiff about the deceased’s final resting place and whether he was cremated. Neither did the plaintiff seek this information directly from the defendant.
From about 20 January 2022 until 17 March 2022, the plaintiff’s solicitors requested that the defendant provide her with a copy of the deceased’s death certificate. These requests were not met. The plaintiff did not obtain a copy of the death certificate until it was produced on or about 5 April 2022 by the Registry of Births, Deaths and Marriages in answer to a subpoena.
The deceased’s death certificate contains a number of significant errors and inaccuracies. The deceased is identified as being married to Guohua Qin and not to the plaintiff; the defendant is listed as the only child of the deceased and the certificate makes no reference to Zimeng Wang; and the address of the deceased is not where he lived with the plaintiff.
The defendant was responsible for providing the information contained in the deceased’s death certificate. He has deposed that he erroneously listed his mother as the deceased’s wife because he misunderstood the question on the death registration form as asking his mother’s relationship to the deceased. He also deposed that, until he read the correspondence from the plaintiff’s lawyers dated 20 January 2022, he was not aware of the deceased’s marriage to the plaintiff, nor that the deceased and the plaintiff had a daughter, Zimeng Wang. He deposed that he listed the deceased’s address as a particular address in Brighton, as the deceased was renting at his date of death and the defendant did not know that address.
On 7 March 2022, the plaintiff filed an originating motion for a grant of letters of administration of the deceased upon intestacy (the Letters of Administration proceeding).
On 11 March 2022, the then solicitors for the defendant lodged a caveat in respect of the plaintiff’s application for grant of letters of administration upon intestacy. In grounds of objection filed on 13 April 2022, the defendant stated that he objected to the making of a grant on the basis that the deceased had left a will dated 26 June 2017 (the purported will).
The purported will appoints the defendant as the trustee and executor of the deceased’s estate and provides for the deceased’s assets in Australia, in the first instance, to be distributed in different proportions between six persons including the defendant and Guohua Qin. The plaintiff is not explicitly named as a beneficiary under the purported will.
The purported will also states:
In contemplation of marital status changes:
I, Kai Jiang, clearly state that if my marital status changes in the future, in the event of divorce or remarriage, this WILL shall not be cancelled or revoked. This WILL shall still stand but how my assets are to be distributed shall be adjusted as follows.
There then follows a table which contains references to the abovementioned six beneficiaries as well as ‘current wife (and children)’ and allocated percentage distributions’. Whilst the plaintiff is not referred to by name in the table, the defendant submits that she is contemplated by the will under the term ‘current wife and children’.
The purported will also contains the following statement:
After I pass away, my funeral arrangements shall be solely decided by my son (Shuai JIANG). How my burial or cremation or funeral matters shall be arranged are only to be decided by Shuai JIANG. Other family members shall not interfere.
The plaintiff claims that the purported will is a forgery. I consider the bases on which this claim is made later in these reasons.
The defendant’s case was also that he and the deceased entered into a ‘Property Transfer Agreement’ dated 1 July 2017 (the property transfer agreement). Consistent with the provision of the purported will referred to in [23] above, that agreement includes the following statement by the deceased:
… How my funeral should be arranged according to culture and how my ashes should be kept shall be decided solely by Shuai JIANG…
The plaintiff also claims that the property transfer agreement is a forgery.
Having commenced the Letters of Administration proceeding on 7 March 2022, the plaintiff commenced this proceeding in relation to securing control of the deceased’s remains on 31 March 2022. She seeks relief pursuant to r 54.02 of the Supreme Court (General Civil Procedure) Rules 2015 (the Rules) and the inherent jurisdiction of the Court. The proceeding came before the Practice Court on 31 March 2022, and orders restraining the defendant from disposing of the deceased’s ashes were made on an ex parte basis. Timetabling orders for the filing of affidavits and submissions were then made on 7 April 2022. Those orders also provided for the continuation of the injunction made on 31 March 2022.
On 19 April 2022, the plaintiff issued a third proceeding, seeking freezing orders in relation to a number of real properties and a vehicle which she claims belonged to the deceased (freezing order proceeding). That proceeding came before the Practice Court on 22 April 2022, at which time the Court made orders by consent restraining the defendant from dealing with the property in question.
This proceeding, together with the freezing order proceeding and the Letters of Administration proceeding, then came before the Practice Court on 29 April 2022 and 2 May 2022, following which hearing an agreed timetable for the filing of further affidavits and submissions in all proceedings was fixed. This proceeding and the freezing order proceeding were set down for hearing before me on 17 June 2022.[2]
[2]On 17 June 2022, the hearing of the freezing order proceeding was adjourned to 24 June 2022.
Legal principles
The Court has jurisdiction to deal with this dispute under order 54 of the Rules because the issue of the possession and control of the deceased’s ashes is a question ‘arising in the administration’ of the deceased’s estate.[3] As explained by Kaye JA in Re Horner, the Court adopts a ‘principled, but pragmatic approach’[4] in determining such disputes, as exemplified in the following statement by Martin J in Calma v Sesar:[5]
Their respective legal claims were subsumed by deep emotion emanating from, and affecting not only them, but other members of the deceased’s extended family as well. Questions relating to cultural values and customs interceded. To state that the Court was asked to make a decision taking into account matters relating to burial in a homeland and the profession of the Roman Catholic faith demonstrates just some of the imponderables. Further, issues such as these could take a long time to resolve if they were to be properly tested by evidence in an adversary situation. A legal solution must be found; not one based on competing emotions and the wishes of the living, except insofar as they reflected a legal duty or right. That solution will not embrace the resolution of possibly competing spiritual or cultural values.
The conscience of the community would regard fights over the disposal of human remains such as this as unseemly. It requires that the Court resolve the argument in a practical way paying due regard to the need to have a dead body disposed of without unreasonable delay, but with all proper respect and decency.
[3]Re Horner [2020] VSCA 85, [88] (Kaye JA).
[4]Ibid [92] and see also [90].
[5](1992) 2 NTLR 37, 42; Re Horner [2020] VSCA 85, [91-92].
Justice Kaye referred to the three judgments of this Court considered below as instances where this approach was applied so as to enable the Court ‘to navigate past the emotional issues that commonly arise … and to determine the central question … in a principled and fair manner’.[6] In doing so, the Court seeks to avoid resolving any contested issues of fact beyond those that are strictly necessary for determination.[7]
[6]Re Horner [2020] VSCA 85, [92].
[7]See the discussion of the authorities and relevant statement of principles in Re Horner [2020] VSCA 85, [62], [66] (Tate JA), [86] (Kaye JA).
In Meier v Bell, the issue to be determined was the particular cemetery in which the body of a deceased was to be interred.[8] Justice Ashley identified that the proceeding raised four major areas of factual dispute about which there was substantial conflict and which could not be resolved upon a reading of the affidavit material.[9] His Honour identified the starting point of principle as being that the executor of a deceased has the right to the custody and possession of the body until it is properly buried and that, with that right of possession, the executor also has the duty to dispose of the body.[10] A corollary of the principle is that a direction by a deceased in a will that his body be disposed of in a particular way does not oblige an executor to act in accordance with such a direction.[11] After referring to the authorities, Ashley J observed that it was appropriate to approach the matter before him by seeking to identify ‘a person with the best claim in law to the responsibility of making burial arrangements’, noting that, although this may not always be straightforward, it was likely to be much easier than attempting to resolve ‘the merits’.[12]
[8]Meier v Bell (Supreme Court of Victoria, Ashley J, 3 March 1997).
[9]It may be noted that, analogously to the present proceeding, two of the areas of factual dispute were whether a document said to be a will was a forgery and whether the deceased was a man to whom Aboriginal spiritual beliefs had meaning.
[10]Meier v Bell (Supreme Court of Victoria, Ashley J, 3 March 1997).
[11]Ibid.
[12]Ibid, [8].
In Leeburn v Derndorfer, a deceased’s son (who was also one of three executors) sought that his father’s ashes be disinterred and that he be provided with one third of the remains, with the remainder to go the other two executors.[13] Although Byrne J dismissed the application on discretionary grounds,[14] he referred to a number of important statements of principle. His Honour stated that disputes about the manner and place of disposition of a dead body are to be solved by ‘select[ing] a person who is to have the right and responsibility for the disposition and then to leave the choice to that person’.[15] In that regard:[16]
The cases establish the general priority for selection for this office, in which the executor named in the will stands first, followed by those in order of entitlement to a grant of administration. But even this order of entitlement has been varied to suit the exigency of the particular case and to meet the practicalities of the situation. It may happen, too, that a person's right to administration is itself a matter of some difficulty.
[13](2004) 14 VR 100.
[14]Including the significant delay in the commencement of the proceeding with the consequence that the deceased’s remains had been interred for over 4 years: see at [32].
[15]Leeburn v Derndorfer (2004) 14 VR 100, [11].
[16]Ibid, [11] omitting citations.
Justice Byrne returned to this issue later in his reasons for judgment observing that, although the decision as to the manner and place of disposition of a dead body is entrusted to the executors, the authorities ‘do admit qualifications’. His Honour stated:[17]
It is possible in certain circumstances for the Court to intervene on the application of an interested party. The executors are expected to consult with those interested and they may not exercise this power so as to exclude friends and relatives from expressing their affection for the deceased in a reasonable and appropriate manner. Likewise, although the executors ought to have regard to the expressed wishes of the deceased and to the cultural and spiritual values of the deceased, they are not bound to give effect to them, for it is not competent for a person to dispose of his or her own body by will or otherwise.
[17]Ibid, [16].
In Keller v Keller,[18] Hargrave J was required to determine which of a deceased’s two children should have the right to possession of the deceased’s body. One of the children wanted the deceased’s body to be cremated in accordance with what she claimed was the deceased’s wishes; the other wanted the body to be buried in accordance with Jewish tradition and religious law. Although both children were the beneficiaries of the deceased’s estate, the deceased had appointed State Trustees as executor. State Trustees sought the Court’s directions under order 54 of the Rules. Justice Hargrave identified the general rule as being that a person named as executor under a deceased’s will has the right to dispose of the deceased’s body.[19] His Honour continued: [20]
This right includes the right to choose how to dispose of the body, whether by burial or cremation. Where there is no named executor, or any intestacy, the person with the highest claim to be appointed administrator of the estate has the same right to choose how to dispose of the body. In each case the law expects, but does not require as a legal obligation, that the executor or person with the highest claim to be appointed administrator will consult with other stakeholders.
[18](2007) 15 VR 667.
[19]Ibid, [6].
[20]Ibid, [6].
Justice Hargrave also dealt with the question of cultural and religious practices relating to the disposal of the deceased’s body. His Honour stated:[21]
I accept that cultural and religious factors may be relevant in cases where the attitude of the deceased to such issues is not in substantial dispute. However, where there is such a dispute, as here, I prefer, on balance, the approach of Ashley J in Meier v Bell. It is consistent with the need to resolve issues such as this in a prompt fashion and in a fashion which does not descend into the unseemly airing of family disputes such as in this case.
[21]Ibid, [15].
In deciding the matter, Hargrave J rejected a contention that the deceased’s will had been revoked, or that there was a substantial prospect that the Court will refuse to admit it to probate.[22] After noting that the affidavit evidence filed by the parties was lengthy and ‘full of assertion and counter assertion’,[23] his Honour determined to exercise his discretion ‘in favour of the child in whom the deceased reposed her principal trust and confidence concerning the significant issues which she faced in her later years’.[24]
[22]Ibid, [7].
[23]Ibid, [17].
[24]Ibid, [18].
Consideration
The central basis on which the defendant opposed the plaintiff’s application was his status as the executor under the purported will and the inclusion within it of the clause referred to in [23] above which purported to give him sole authority in relation to the deceased’s funeral arrangements. The defendant likewise emphasised the provision of the property transfer agreement referred to in [25] above. As the authorities make clear, the general rule is that the person named as an executor under a deceased’s will has the right and authority to dispose of a deceased’s body.
In my assessment, however, the exigencies of this case are such that this general principle should not operate to determine who has control over the disposition of the deceased’s ashes. I reach this conclusion because the plaintiff has sufficiently put in issue the authenticity of the purported will and the property transfer agreement such that it would not be appropriate for the provision made by them to be determinative in resolving who should have control over the deceased’s remains.
In very broad terms, the plaintiff relies on the following matters and circumstances in support of her claim that the purported will is a forgery:
(a) The purported will was not prepared and executed in the usual manner the deceased prepared and executed important documents.[25]
[25]The plaintiff’s evidence was that the deceased wrote important documents by hand and executed them with an inked thumbprint superimposed over the signature. The purported will and the property transfer agreement have neither of these qualities.
(b) The disposition of assets provided for by the purported will is at odds with the deceased’s personal loyalties and the nature of his familial relationships at the time of its purported execution.[26]
[26]The plaintiff deposes that at his death, the deceased was estranged from his former wife and the defendant, to whom he left large portions of his estate. Conversely, she deposes that she shared a loving relationship with him, lived together and shared expenses.
(c) The circumstances in which the purported will was produced to the plaintiff are suspicious. Although, according to one of the claimed attesting witnesses to the purported will, the defendant was contacted in early November 2021 to arrange to be given the purported will, it was only on 8 March 2022 that the defendant’s former solicitors informed the plaintiff’s solicitors that the defendant ‘may have located a current valid will of the deceased’.
(d) The reference in the purported will to the prospect of the deceased changing his marital status and leaving monies to Guohua Qin as well as an unnamed future wife was ‘unbelievable’, as the deceased was still married to Guohua Qin at the time of its execution.
(e) The purported will is silent on the deceased’s considerable assets within China.
I am cognisant that the defendant has filed affidavits from the two attesting witnesses to the purported will in which they depose to having witnessed the deceased sign the purported will. That evidence will fall to be considered at trial in the Letters of Administration proceeding in determining whether or not the purported will is a forgery; it is neither appropriate, nor tenable, for me to do so in this proceeding. However, I consider that the contentions advanced by the plaintiff referred to in subparagraphs (a) - (c) above, and the evidence adduced in support of them, are sufficient to establish a suspicion that the purported will may not be genuine. There is accordingly a serious question to be tried as to whether the purported will is a fabrication. I emphasise that I have not formed any opinion about the prospects of success of that claim at trial.
It would be inappropriate to identify the person with the best claim in law to be responsible for disposing of the deceased’s remains by giving effect to the authorities and directions contained in the purported will when its authenticity is in doubt. In those circumstances, and consistent with the approach adopted by Hargrave J in Keller v Keller, a more appropriate and surer basis upon which to select the person who is to have the right and responsibility for disposing of the deceased’s remains, is to give that right and responsibility to the person who is likely to have been closest to the deceased late in his life and who is therefore more likely to have been invested with his trust and confidence. In adopting that approach, I will not seek to resolve the dispute about whether or not the deceased was an adherent of Buddhism. Consistent with Byrne J’s observations in Leeburn v Derndorfer, the choice about the nature and extent of the religious rites and practices which may be observed in relation to the disposal of the deceased’s ashes will be a matter for the person who will have the right and responsibility for their disposition.
Applying this approach, I consider that the plaintiff, rather than the defendant, is the more appropriate person to have responsibility for making decisions about the most appropriate way to deal with the deceased’s ashes.
A matter of particular significance in my conclusion is that, irrespective of when the deceased and the plaintiff commenced living together, it is not in dispute that, at the time of the deceased’s death, he and the plaintiff were married and had been married and cohabiting for 12 months. There is no suggestion that they were estranged at any time over this period. In the absence of disentitling conduct or other compelling circumstance, I consider that it would be inconsistent with community expectations if, in the circumstances I have described, the spouse of a deceased did not have authority and control over the disposal of their partner’s remains.
Although there is evidence which suggests that the defendant and the deceased maintained a warm and caring relationship, at least at certain times, there is also evidence which indicates that their relationship was sometimes fraught and hostile. On 30 September 2014, a ‘family violence safety notice’ was issued against the deceased which identified the defendant as the protected person. The reasons for issuing the notice certified by the relevant issuing officer record a serious domestic violence incident involving the deceased and the defendant (in addition to Guohua Qin). There was also in evidence transcripts of various recordings made in October 2020 in which the deceased appeared to speak disparagingly and critically about the defendant. Further, the fact that the defendant only became aware through his cousin, Zheng Liu, that the deceased had been hospitalised with COVID-19 also tends to suggest that the defendant and the deceased may not have been particularly close late in the deceased’s life. All of these matters sit uneasily with the defendant’s claim that he maintained a ‘normal father and son relationship’ with the deceased until his death. However, for present purposes the key issue is that there is no evidence which suggests that the relationship between the deceased and the plaintiff was characterised by episodes of conflict and strain as appears to have been the case between the deceased and the defendant.
Finally, although the defendant has offered to consult with the plaintiff about the manner in which the deceased’s remains may be dealt with, that offer has been made belatedly and in a context where the defendant was non-responsive to the plaintiff’s requests to be provided with a copy of the deceased’s death certificate, as referred to in [16] above. In those circumstances, the plaintiff is entitled to be sceptical about the defendant’s offer. The deficient manner in which the defendant has consulted with the plaintiff in this respect is a factor which militates in favour of the plaintiff.
For these reasons, I will order that the defendant give the ashes of the deceased to the plaintiff and that the plaintiff, after consulting with the defendant, have the right to deal with them in her sole discretion.
---