Burial Disputes

Over my dead body2

The death of a loved one is an extremely difficult time for family members. For many people, an important part of the grieving process is ‘saying goodbye’ during a funeral or memorial service. However, in a recent case, family members had been waiting 14 years for this opportunity.

June Woo died on 15 November 2002. In 2010, the Supreme Court of Queensland dismissed an application by her children, Catherine Yu, Helena Yu and Rosemary Yu to re-open a coroner’s inquiry into her death. They were dissatisfied with their mother’s autopsy and had petitioned the Attorney-General to direct an inquest into her death. The State Coroner’s findings, published in mid-2009, revealed agreement with the autopsy as to the causes of death.

For more than 7 years, June’s body had remained in a morgue while Catherine, Helena and Rosemary pursued their challenge to the coroner’s findings. They had argued that medical negligence had been a contributing factor to their mother’s death as opposed to natural causes.

Since 2010, Catherine and Helena, the executors of June’s estate, took a variety of steps to prevent the burial of their mother going ahead. In February 2011, at their request, June’s body was released to Simplicity Funerals so that a burial could be conducted. However, they then refused to allow Simplicity Funerals to bury the body because they were concerned that their mother’s organs had not been returned to her body. They requested X-ray and DNA testing and were informed on several occasions that all of the organs were returned to the body after the autopsy.

In January 2016, Orders were made in accordance with section 3 of the Burials Assistance Act 1965 (Qld) requiring that the Chief Executive direct Simplicity Funerals to release June’s body into its possession and then cause her body to be buried in accordance with the rites of the Catholic Church as soon as practicable. An Order was also made as to the place of burial. Those Orders were made because it appeared that no suitable arrangements for the disposal of the body had been, or were being, made. Catherine and Helena filed an appeal against these Orders.

In March 2016, Catherine and Helena applied to the Court to obtain a stay in relation to their mother’s burial arrangements. Obtaining a ‘stay’ will stop the operation of Court Orders until an appeal against them is decided. The Court dismissed Catherine and Helena’s application for a stay on the basis that there was no legal merit in the proposed appeal and, therefore, no basis upon which a stay should be ordered. Further, granting a stay would not achieve anything – it would only defer the burial pursuant to section 3 of the Burials Assistance Act 1965 (Qld).

This was, as the Judge described, a terribly sad case. While disputes in relation to funeral arrangements are not always avoidable, ensuring that your family is aware of what you wish to happen to your body on death is very important. A provision can be included in your Will expressing your desire for a burial or cremation and also identifying, for example, the place that you wish to be buried or have your ashes scattered. However, as a Will is not always considered until after the funeral, it is advisable to also speak with your family and/or provide written instructions separate to your Will, so that your wishes are known long before your Will is sighted after your death.

For more information

Yu v Chief Executive, Department of Justice and Attorney-General [2016] QCA 54

Yu v Attorney-General for the State of Queensland [2010] QSC 195