It is not uncommon for family disputes to arise over the possession of the deceased’s ashes after cremation. In these instances, it is important for the funeral arranger to advise the family who has the right to possession of the ashes under the law.

If there is a Will

The executor of the last Will of the deceased controls the burial or cremation arrangements. In the case of Milenkovic v McConnell [2013] WASC 421 the Western Australian Supreme Court found that “...the person entitled to receive the ashes is the person who obtained the permit for the cremation...”.

The individual who applies for the cremation permit is entitled to possession of the ashes. If however there is a dispute, then the named executor will have the first right to possession.

Again, the person entitled to receive the ashes is the person who obtained the permit for the cremation. If the deceased’s Executor applies for the cremation permit but dies, then their personal representative will be responsible for collecting the ashes. The personal representative and the deceased’s next of kin can, however, agree differently.

What happens if there is no Will?

Where there is no Executor, the Cremation Regulations 1954 (WA) ranks in priority the following persons who are entitled to possession of the ashes:

  1. the spouse or de facto partner living with the deceased immediately prior to the death;
  2. the spouse;
  3. the son or daughter if over 18;
  4. the parent of the deceased;
  5. a brother or sister of the deceased over 18.
How can I find out more?

At IRDI Legal, our experienced and specialised Wills and Estates team can assist you with all aspects of your estate planning and administration. Please contact us to find out more.

Note: The content of this document is not legal advice and only provides general information about the law.

 

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