Brown v Weidig [2023] NSWSC 281

The right to burial or cremation

The Honourable Justice Lindsay held that the remains of a young Aboriginal man who had passed away be cremated in accordance with the wishes of his mother and contrary to the wishes of his father. This case is significant in ascertaining the testamentary intentions of the deceased in the absence of testament instructions, the disposal of an individual’s remains upon death and the consideration of an individuals’ Aboriginal culture and heritage in making these decisions. The following is a summary of the proceedings.

A 23-year-old Biripi Aboriginal man tragically committed suicide in January 2023. His death shocked his family and friends and devastated his community. He passed away without leaving a Will or any other testamentary documents leaving instructions on how to manage his affairs after he passed way. This caused the first issue in these proceedings as his parents had conflicting opinions of what was to happen with his remains.

The deceased’s father is an Aboriginal man living in Taree, who wanted his son to be buried. This was to conform to his understanding of local Aboriginal customary law and tradition surrounding burial rites, which is of great importance to him and his branch of the son’s family.

The deceased’s mother is of European decent and lives in near Sydney, who wanted her son to be cremated.  The mother relied on her close personal connection she shared with her son and her desire to have his remains close by and in place meaningful to her. [17].

The second issue was the location of the son’s remains and where they should be located. The father submitted his desire for his son to be buried on or proximate to ancestral Aboriginal land, while the mother submitted her desire for their son’s ashes to remain in Sydney. [18]

The third issue pertained to access to the son’s remains. The father favoured a publicly accessible gravesite in the Taree region. The mother, however, submitted that this location was too far for her to travel and expressed her desire for the cremation and to either retain or scatter his ashes. [19] The father offered to pay for the mother’s travel from Sydney to Taree (a four hours’ drive) for a period of three years.

The Court considered the prior decision made in South Australia v Smith (2014) 119 SASR 247 regarding the following factors:

– Whom may be entitled to apply for letters of administration [47]
– Aboriginal cultural matters and concern [55]
– The deceased’s own wishes [61]
– The wishes of any living close relatives [65]

The father cited his son’s connection to his Aboriginal culture and provided the following submissions, that his son:

– was born and raised in Taree, consistently visited and expressed desire to move there; 
– identified and registered as a Biripi Aboriginal man;  
– had family and ancestors buried in Taree, whom he had expressed desire to be buried next to;

– had no meaningful connection with any other place, religion, or culture.

The father also submitted that while some Aboriginal people have adopted the practice of cremation, there is a belief that being cremated creates a disconnection and misplacement of an individual’s spirit. The father submitted evidence from several Aboriginal Land Councils and an Aboriginal Elder of Taree to substantiate his claims regarding the need for the burial to be on country.

The father submitted affidavits from several family members that detailed conversations that they had with the son and his desire to buried on country upon his death. The mother submitted that her son was proud of his European heritage and expressed his desire to be cremated.


Decision

Justice Lindsay accepted that the son was proud of both his Aboriginal and European heritage and that both the father and the mother were of equal right to apply for a grant of letters of administration.  

The Court was concerned about the logistics of transporting the son’s body after hearing evidence from the funeral home, regarding the state of the remains after his death. [73] The father contended that despite this, the son could still be buried. The father offered to pay for the costs of transporting the remains, the funeral as well as the mother’s travel expenses for three years.

However, His Honour granted the mother permission to proceed with the cremation. His Honour granted the father the option of taking half of the son’s ashes, to dispose of them on country or however he chose. The father refused, providing that this was contrary to his cultural values and beliefs.


Conclusion

This tragedy and the court case that proceeded it serves as an important reminder to all people to provide clear instructions of what they would like for our loved ones to do when we pass away and can no longer express these desires. Regardless of a person’s age, financial situation or health status. The absence of a Will in this instance caused distress and legal costs to a family that was already experiencing immense grief from the death of their son. 

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