A Legal Dispute over a Funeral
Posted on October 01, 2014
Virtually all disputes over a deceased estate involve money. However, as a recent court case in Queensland demonstrates, the funeral of a deceased person became the subject of a dispute and it required the Court to resolve it. The dispute was between two family members who had conflicting views on whether a deceased person’s body should be buried or cremated.
James Laing died in Ipswich, Queensland. His wife wanted to cremate his remains in Queensland. His children wanted to bury his remains in Canberra. In deciding this matter, the Supreme Court of Queensland examined the circumstances surrounding Mr Laing’s death, the law and the facts of the case.
Mr Laing’s death
On 24 July 2014 James Laing was taken to Ipswich hospital by ambulance accompanied by his wife, Tracey Laing. James Laing had suffered a stroke and he died later that day. Tracey Laing was the second wife of James Laing. A dispute then arose between Tracey Laing and James Laing’s three adult children from his first marriage as to the method and place of the disposal of Mr Laing’s body.
The Law
When a person dies, the executor of the deceased’s will has the right to determine the method and place of the disposal of the deceased’s body. If the deceased left signed instructions to be cremated, then the executor may arrange a cremation. If there are no signed instructions and an adult child objects to the cremation, then a cremation cannot be carried out.
The Facts
James Laing was 84 when he died. He married his first wife, Christobel, in 1960 and they had three children. The Laing family lived in Canberra from 1972. James Laing was a lawyer who worked for the Attorney General’s Department and all three children were brought up in Canberra. According to his children, James Laing was a loving husband and father, a capable lawyer and a prudent and conservative man.
Christobel died in 2002 and was buried in Canberra. James Laing selected a double plot at the cemetery so that he could be buried next to his wife after he died. James Laing would visit his wife’s grave every Friday for many years and frequently reminded his three children of his wish to be buried next to Christobel.
From about 2006, James Laing’s personality changed. He started to give his assets away and made proposals of marriage to prostitutes. He met Tracey Laing in 2010 after contacting her via her advertisement in a newspaper as a sex worker.
In September 2011 James and Tracey Laing were married and they moved to Queensland. James Laing’s impaired decision making capacity resulted in the Queensland Public Trustee becoming responsible for James Laing’s financial matters in October 2012. James Laing’s last will was made in 2013 and he disposed of the whole of his estate to Tracey Laing and if that gift failed then to Tracey Laing’s four children. There was a provision that confirmed he left nothing to his three children. There was also a handwritten note which Tracey Laing said was in James Laing’s handwriting that Tracey Laing interpreted as expressing James Laing’s desire to be cremated.
Court Decision
The Court expressed doubt as to James Laing’s mental capacity to make his last will and so there was doubt as to the identity of the executor.
The handwritten note which Tracey Laing said was written by James Laing expressing his desire to be cremated was illegible and contained hostile statements about his three children. Nor was it signed by James Laing. It was disregarded by the Court.
Therefore, with doubt over the identity of the executor and no written instructions concerning cremation, the Court looked at the facts of the case and ruled that James Laing’s body should be buried in Canberra. He had lived the majority of his adult life there, raised a family there and when his wife of almost 40 years died he arranged a burial plot for them both to be buried alongside one another. When he did this he had the ability to make rational decisions.
Prior to his death the Public Trustee had been appointed to look after James Laing’s financial affairs and he was unable to make considered judgments later in his life. The hostility to his children was irrational and encouraged by Tracey Laing. His residence in Queensland was brief and he had no family or friends there except for Tracey Laing and her family.
The case highlights the importance of a valid will and the appointment of a suitable executor. Due to the uncertainty concerning the validity of the last will made by James Laing, one of the most basic and routine decisions in the administration of a deceased estate was mired in controversy. This matter has only just begun; in the months ahead, in all likelihood, there will be a dispute about how James Laing’s estate will be distributed.
Please call us if you have any queries concerning the validity of your will or the administration of a deceased estate.