'Trusts Over Cremated Ashes' by Kate Falconer in (2021) 15(3) Journal of Equity 283 comments
Every year in Australia over 110,000 people are cremated. Each of these cremations leaves behind physical material – what is commonly referred to as ‘cremated ashes’, or, more succinctly (and no less respectfully), ‘cremains’. In recent decades, Australian courts have begun to impose trusts over this physical material prior to its ultimate disposal. This ‘cremated ashes trust’ provides courts with much-needed flexibility in resolving bitter disputes between those close to the deceased, but, so this article argues, is built on flawed foundations. In particular, this article rejects the explanation given in the case law to date, which sees the trust over cremated ashes as an express trust for a purpose. Instead, it argues that the classification of the cremated ashes trust as a constructive trust best reflects both doctrinal reality and the normative forces that have underpinned its development.
Falconer states
In recent decades, Australian courts have begun to impose trusts over this physical material prior to its ultimate disposal. This ‘cremated ashes trust’ provides courts with much-needed flexibility in resolving bitter disputes between those close to the deceased, but, so this article argues, is built on flawed foundations. The central goal of this work is to explore the development of the cremated ashes trust, and, hopefully, place it on firmer doctrinal footing. To this end, this article rejects the explanation given in the case law to date, which sees the trust over cremated ashes as an express trust for a purpose. Instead, it argues that the classification of the cremated ashes trust as a constructive trust best reflects both doctrinal reality and the normative forces that have underpinned its development. In making this argument, this article provides some much-needed certainty to the law of the dead in its interactions with the private law, and in particular the law of trusts.
Part II commences this article’s analysis by situating cremains and the burial disputes to which they are increasingly being subjected in the context of the Australian common law of the dead. It then explores the development of the cremated ashes trust in detail. Part III begins the search for a doctrinal home for the cremated ashes trust. It presents three arguments against the position taken by courts that the trust over cremated ashes is an express purpose trust. This Part argues that the purpose supposedly at the core of the cremated ashes trust is not one recognised at law, and in any case, that the cremated ashes trust is in fact best characterised as a trust for persons. Even this recharacterisation, however, cannot overcome the fact that the cremated ashes trust is incapable of resulting from the intention necessary to bring an express trust into existence. Against this backdrop, Part IV makes the case for the cremated ashes trust as a constructive trust. It emphasises that the cremated ashes trust arises when certain factual circumstances are met, regardless of intention and without the need for a court order. In doing so, it transforms a pre-existing social relationship into a legal relation recognised at law. At the same time, the content and form of the cremated ashes trust are shaped by courts so as to best do justice between the parties to the dispute. In this way, then, the cremated ashes trust is truly an example of the Australian constructive trust as a remedial institution
in The State of South Australia v Ken and Ors [2021] SASC 10 the SA Supreme Court has added to the jurisprudence regarding common law and busial decisions.
The judgment states
Kunmanara Barney Randolph Shane David Waye died intestate on 4 July 2018. There is a dispute between his biological parents, David “Scotty” Ken and Marceena Waye concerning the place of his burial. The bodily remains of the deceased have been stored at the mortuary of the Royal Adelaide Hospital since 6 September 2018. The State of South Australia has instituted proceedings seeking orders as to the final burial place of the deceased. The respondents to those proceedings are the deceased’s biological parents, the deceased’s paternal grandmother Yuminya Ken, the deceased’s paternal aunt Tjimpuna Williams, and the deceased’s sister Bessie Waye.
The deceased’s father, Yuminya Ken and Tjimpuna Williams want the deceased buried at Pukatja (Ernabella). The deceased’s mother and sister want the deceased buried at Port Augusta. The dispute between the parties is intractable.
In the circumstances the dignity of the deceased and the conscience of the community require that a declaration as to the place at which the deceased be buried is made so that he can be buried without further delay, but with all proper respect and decency.
The deceased was born in Port Augusta on 6 July 1993. Accordingly, he was 24 years of age at the time of his death. It appears he died leaving no assets. The evidence is he died without issue and without a wife or de facto partner.
Held: 1. After undertaking a balancing of common law principles and practical considerations, as well as attention to cultural, spiritual and religious factors, Pukatja has the stronger claim to be the appropriate place of burial of the deceased. 2. The place for burial of the deceased, Kunmanara Barney Randolph Shane David Waye, who was reported to have died on 4 July 2018, is to be Pukatja.
Stanley J states
[1] Kunmanara Barney Randolph Shane David Waye died intestate on 4 July 2018. There is a dispute between his biological parents, David “Scotty” Ken and Marceena Waye concerning the place of his burial. The bodily remains of the deceased have been stored at the mortuary of the Royal Adelaide Hospital since 6 September 2018. The State of South Australia has instituted proceedings seeking orders as to the final burial place of the deceased. The respondents to those proceedings are the deceased’s biological parents, the deceased’s paternal grandmother Yuminya Ken, the deceased’s paternal aunt Tjimpuna Williams, and the deceased’s sister Bessie Waye.
[2] The deceased’s father, Yuminya Ken and Tjimpuna Williams want the deceased buried at Pukatja (Ernabella). The deceased’s mother and sister want the deceased buried at Port Augusta. The dispute between the parties is intractable.
[3] In the circumstances the dignity of the deceased and the conscience of the community require that a declaration as to the place at which the deceased be buried is made so that he can be buried without further delay, but with all proper respect and decency.
[4] There is no issue that the dispute is justiciable before this Court pursuant to its inherent jurisdiction. There is no dispute that the State has standing to bring the application.
[5] The deceased was born in Port Augusta on 6 July 1993. Accordingly, he was 24 years of age at the time of his death. It appears he died leaving no assets. The evidence is he died without issue and without a wife or de facto partner.
Relevant legal principles
[6] At common law there is no property in a dead body, nor is the body of a deceased person capable of being owned. As a matter of general principle, where a deceased has left a will the obligation to arrange the burial of the deceased falls on the executor of his or her estate. Where a person dies intestate the position has generally been that the person eligible to apply for a grant of letters of administration has the right of burial. However, in circumstances where there has been no application for a grant of administration and none is ever likely to be made, the historical common law position to assigning a right of burial takes on “an air of unreality”. In Jones v Dodd Perry J, with whom Millhouse and Nyland JJ agreed, noted that the eligibility to apply for a grant of letters of administration had been a convenient method by which to approach some cases, but was not a hard and fast rule. He said that the approach is irrelevant where there is no estate and no likelihood of a grant ever being applied for.
[7] In the subsequent case of Dodd v Jones Doyle CJ considered that Perry J did recognise that the common law approach was the usual approach, but it was not to be applied rigidly.
[8] Subsequently in Minister for Families and Communities v Brown Gray J, in deciding a dispute over burial, considered not only which party had a stronger claim at common law but also the lifestyle, relationship and practices of the deceased in reaching a conclusion as to burial rights.
[9] In South Australia v Smith Nicholson J said:
The authorities decided in this State, considered to this point, suggest that no standard approach or hard and fast rule can be formulated and applied when determining a burial dispute of this nature. The proper approach, ultimately, requires a balancing of common law principles and practical considerations, as well as attention to any cultural, spiritual and religious factors that are of importance. Further, it is the unique factual context of the dispute itself which will determine the weight which particular factors should be accorded.
[10] Ultimately, Nicholson J identified four main considerations to be weighed in deciding disputes of this kind. They are:
1. who might be entitled to obtain letters of administration in the event that such an application were to be made;
2. Aboriginal cultural matters and concerns raised in the evidence;
3. the deceased’s own wishes; and
4. the wishes and sensitivities of the living close relatives.
[11] This approach has been subsequently approved and adopted in other jurisdictions. ...
[27] In Love v Commonwealth Bell J said that the High Court in Mabo v Queensland recognised a connection that Aboriginal Australians have with “country” that is essentially spiritual. In Love Nettle J observed that central to the traditional laws and customs of Aboriginal communities was, and is, an essentially spiritual connection with “country”, including a responsibility to live in the tracks of ancestral spirits and to care for land and waters to be handed on to future generations.
[28] I received evidence of academic research and writing on Pitjantjatjara burial practices. I accept that it is important for Anangu to be buried back on country, the land of their totemic ancestors, the country of their Tjukurpa. The Anangu attribute the beginning of human and other life forms and the shaping of the environment to the activities of spirit beings, kurunpa tjuta, during the creative period known as Tjukurpa, usually glossed as the Dreaming. In Pitjantjatjara customary lore, before the Dreaming there existed a formless substance, under the surface of which the various spirit beings lay dormant. Tjurkurpa refers to the occasions when these beings became animated and emerged on the surface of the earth, sharing identities of both humans and the animal and plants species of the localities. I accept that for Anangu men the primary Tjurkurpa connection is the relationship to their father’s and grandfathers’ country confirmed through initiation ceremonies into manhood. On death their spirit returns to the country of their Tjurkurpa totemic ancestor of their spirit. In this case, that is Pukatja.
2[9] Undertaking a balancing of common law principles and practical considerations, as well as attention to cultural, spiritual and religious factors, I consider Pukatja has the stronger claim to be the appropriate place of burial of the deceased.
