The Supreme Court of Western Australia has inherent jurisdiction to resolve disputes concerning controlling a deceased’s funeral and disposal of the body. This jurisdiction is preserved by s4 of the Administration Act 1903 (WA).

The legal framework is based on the following core principles:

It is essential to note that no property ownership is associated with a dead body. (Williams v Williams (1882) 20 Ch D 659). A person does not possess the right to dictate the disposal of their own body through a Will. However, the expressed wishes are persuasive in guiding decisions about their remains. 

Ultimately, the individual to whom the body is released holds the authority to arrange the funeral and decide on the method of disposal. Although consulting with other interested parties about these matters is prudent, there is no legal obligation.

Typically, the Court releases the body to the executor named in the Will as the legal personal representative of the estate. In cases where there is no Will, the individual most likely to be granted administration is typically the one with the most significant interest in the estate.

Mitchell JA in Britt v The State of Western Australia [2022] WASCA 75 [61], [64] (with whom Murphy and Beech JJA agreed) provided additional guidance: The usual approach to these matters is flexible and may not be applicable in exceptional circumstances. The decision ultimately hinges on the specific details of each case. Importantly, when determining who should receive the body, there is no need to establish an entitlement to the estate—the prompt resolution of these issues without comprehensive factual investigation or cross-examination is the best approach. 

In Burrows -v- Cramley [2002] WASC 47, Pullin J held that delaying a funeral for months to settle estate disputes indicates a lack of respect for the deceased and places an undue burden on their loved ones. Furthermore, the Court should quickly identify who is most likely to obtain a grant of administration based on available evidence, as postponing decisions until after resolving related disputes is typically inappropriate.

However, in some circumstances, deviations from standard practice may be warranted, especially if those likely to succeed in obtaining administration are unable or unwilling to arrange the funeral.

Background

Karl Seidler (the Deceased) passed away on 5 September 2024, leaving behind two daughters. Anita (the second defendant) wishes to cremate the Deceased’s body, while Kathryn (the plaintiff) prefers burial.

In Seidler v The State Coroner of Western Australia [2025] WASC 81, the plaintiff seeks an order for the Deceased’s body to be released to her for disposal. The plaintiff’s concerns about the Deceased’s estate fall outside the scope of the present proceedings and are to be addressed separately, depending on whether the Deceased left a Will or died intestate.

Initially, the State Coroner of Western Australia (Coroner) was the sole defendant. On 31 January 2025, Lundberg J directed the plaintiff to serve court documents on the Coroner and the second defendant. His Honour also ordered the plaintiff and the defendant to confer concerning the relief sought.

On 6 February 2025, Lundberg J formally added Anita as the second defendant, with the Coroner remaining the first defendant.

Disposal of the deceased’s body

The Deceased’s body remains at the State Mortuary, where the Coroner has instructed not to release the body until the resolution of proceedings or further Court orders.

The plaintiff believes a Will exists, naming one of the deceased’s friends, Peter Mattock, as executor and the plaintiff as an alternate. Mr Mattock, a Deceased friend, resides in New South Wales but has been uncontactable. Gething J adjourned the starting date from 13 February 2025 at the defendant’s request to allow time to locate Mr Mattock. The Court denied the defendant’s request for orders to obtain further information concerning a Will, as the Deceased had been dead for over six months.

There is no evidence of the deceased’s Will before the court. The defendant’s application for a stay to obtain further information concerning a Will was dismissed. Given that the deceased had been dead for over six months, Gething J considers it unlikely that a Will exists.

Similarly, his honour recognised the need for urgency, as a lengthy delay in funeral arrangements can be distressing for both the dignity of the deceased and the emotional well-being of their loved ones. Accordingly, the application proceeded on the basis that no Will exists. Even if someone located a Will, any stated preferences concerning the disposal of the Deceased’s body, though persuasive, would not be legally binding.

Whether there is a grant of letters of administration or, if a Will emerges, a grant of probate, the question of who is entitled to make such an application is not a matter in this proceeding. The plaintiff lodged a caveat in the Supreme Court of New South Wales to prevent a grant of probate from occurring without notice.

Additionally, the plaintiff filed a document indicating an intention to seek probate of a purported Will naming Mr Mattock as executor. However, as the New South Wales Supreme Court only has jurisdiction over estates involving property in New South Wales, the caveat has no effect in Western Australia.

A further reason for the initial adjournment was to allow the plaintiff to raise concerns with the Coroner about the Deceased’s autopsy. A forensic pathologist responded to the plaintiff on 17 February 2025, stating that no further forensic testing on the Deceased’s body would be helpful. Consequently, there is no justification for further delay in resolving this matter on forensic grounds.

Affidavits sworn on 28 January, 27, and 28 February 2025 contain the plaintiff’s evidence. Similarly, affidavits sworn on 11 February and 7 March 2025 include the second defendant’s evidence.

On 1 February 2025, the acting principal registrar of the Coroner’s Court affirmed an affidavit and provided a second affidavit on 28 February 2025. The State Solicitor’s Office filed submissions on the Coroner’s behalf to ensure that all relevant facts and legal principles were before the court. The Coroner has not taken a position on the case’s merits and will abide by the court’s decision.

At the hearing, counsel for the Coroner was present, the second defendant attended in person, and the plaintiff participated via video link. Gething J permitted no cross-examination of deponents, ordering all affidavits taken as read.

Gething J considers it unlikely that a Will exists; in cases of this nature, prolonged delays in funeral arrangements can be distressing for the deceased’s dignity and their loved one’s emotional well-being. Accordingly, the application will proceed on the basis that no Will exists.

Even if a Will was located, any preferences concerning the disposal of the Deceased’s body, while persuasive, would not be legally binding. An application for letters of administration or, if a Will emerges, an application for probate will be required. The question of who is entitled to make such an application is not a matter in this proceeding.

Caveat

The plaintiff has lodged a caveat in the Supreme Court of New South Wales to prevent a grant of probate without her notice. She has also filed a document indicating her intention to seek probate of a purported Will naming Mr Mattock as executor. However, as the New South Wales Supreme Court only has jurisdiction over estates involving property in New South Wales, the caveat has no effect in Western Australia.

Further, an initial adjournment provides the defendant time to raise concerns with the Coroner about the Deceased’s autopsy. Correspondence on this issue was finalised on 17 February 2025, that no further forensic testing on the Deceased’s body would be helpful. Consequently, no justification for additional delays in resolving this matter on forensic grounds is required.

Affidavits sworn on January 28, February 27, and 28, 2025, contain the plaintiff’s evidence. Similarly, affidavits sworn on 11 February and 7 March 2025 include the second defendant’s evidence.

The acting principal registrar of the Coroner’s Court affirmed an affidavit on 1 February 2025 and filed a second affidavit on 28 February 2025. The State Solicitor’s Office filed submissions on behalf of the Coroner on 1 February to ensure that all relevant facts and legal principles were before the Court. The Coroner has not taken a position on the merits of the case and will abide by the Court’s decision.

Counsel for the Coroner, the second defendant, attended the Court in person, and the plaintiff participated via video link. The Court permitted no cross-examination of exponents and ordered that all affidavits be taken as read.

Summary of the plaintiff’s Evidence and Submissions

The plaintiff, the Deceased’s second-oldest daughter, lives in Seattle but has a home address in New South Wales.

The plaintiff submits that the Deceased was a traditional German Catholic who attended church occasionally, particularly on Christmas, and had a strong preference against cremation. In her view, both Catholic and German traditions strongly favour burial over cremation and supported this with references to Catholic doctrine.

Despite being unemployed due to a workplace injury, she believes that the Deceased had over $250,000 in a Commonwealth Bank of Australia (CBA) account, which could potentially cover the costs of a burial. However, all siblings must authorise the release of those funds since there is no Will or grant of administration in place.

Additionally, the plaintiff claims that the Deceased had previously tried to recover loans from the second defendant; Gething J found this argument irrelevant. Relying on s13 of the Cremation Act 1929 (WA), the plaintiff firmly opposes the idea of cremation, as she believes it would be disrespectful and would deprive her of a sense of closure.

The second defendant’s Evidence and Submissions

The second defendant, the eldest daughter of the Deceased, currently resides in Western Australia. She asserts that her father, who migrated to Australia in 1960, was not a practising Catholic and did not regularly attend church or partake in the sacraments. Furthermore, the Deceased never made any arrangements for a Catholic burial, nor did he express a preference for either burial or cremation.

In her argument for cremation, the second defendant highlights that it is an acceptable practice in Germany and references Pope Francis’ 2016 statement, which permits cremation as long as the remains are treated with respect. Due to her financial and personal constraints, the second defendant cannot facilitate a full burial, having obtained quotes that amounted to $13,512 for burial and $2,700 for cremation. She has opted for cremation, proposing a memorial service in Sydney when the plaintiff can attend.

The second defendant’s mother, who is the Deceased’s ex-wife, supports the decision for cremation, although no affidavit has been submitted to formalise this support. The second defendant expresses that the delays in resolving the matter are causing her distress and hindering the family’s ability to find closure. Given the deceased’s long residence in Australia, she believes that Australian laws and customs concerning cremation should take precedence. As the eldest next of kin residing in Western Australia, the second defendant feels she possesses the practical and legal authority to oversee the funeral arrangements.

Who is Most Likely to Be Granted Administration of the Deceased’s Estate?

Since the Deceased passed away without a Will, the estate administration falls under s 25(1)(a) of the Administration Act, which allows the court to appoint one or more eligible beneficiaries over 18 to manage the estate. Typically, the beneficiary with the most significant interest in the estate is favoured for this role. However, in this particular case, all of the children have an equal entitlement to the estate, which may allow them to be appointed joint administrators.

If the plaintiff decides to apply for administration, she must provide an address for service within the jurisdiction. Additionally, any sole applicant must inform the other siblings of the application. When a dispute arises, the court has the authority to appoint one or more administrators, prioritising the efficient and proper management of the estate.

Who Should the Deceased’s Body Be Released To?

The funeral wishes of the Deceased remain unclear, creating a conflict between the plaintiff, who opposes cremation on religious grounds, and the second defendant, who submits that cremation is permissible under Catholic doctrine. The court, however, accepts the defendant’s evidence that the Deceased never expressed any specific religious preferences concerning funeral arrangements.

Practical factors also favour cremation. The plaintiff has not provided a timeline for burial and would need to coordinate arrangements from Seattle. Her financial plan hinges on the cooperation of all siblings in signing a release. In contrast, the second defendant, who resides in Western Australia, is better positioned to manage the funeral arrangements and has the necessary funds for cremation. Moreover, the second defendant has proposed a respectful memorial service in Sydney.

Nonetheless, the legal landscape complicates the situation. Under s 13(1) of the Cremation Act, cremation is prohibited if a next of kin submits a written objection. The plaintiff’s objection to the Coroner meets this requirement, making cremation legally impermissible. The court finds itself unable to override this restriction. 

As a result, releasing the body while mandating burial would be inequitable to the plaintiff. Given these considerations, the court ultimately grants the plaintiff responsibility for funeral arrangements.

This section effectively prohibits the cremation of a deceased person’s body if any next of kin has submitted a written objection to the cremation. The Cremation Act and the Cremation Regulations 1954 (WA) do not indicate to whom the written notice should be addressed. Nonetheless, in this instance, Gething J was satisfied that the plaintiff‘s correspondence to the Coroner meets the requirement for sufficient written notice. 

Therefore, legally, the body of the Deceased cannot be cremated. The court lacks the authority to issue a contrary order. 

The second defendant’s suggestion of cremation is one that she is prepared to finance. While the practical considerations strongly support the release of the Deceased’s body to her, Gething J believes it would be unjust to grant her release of the body with a mandate for burial. 

For this singular reason, Gething J exercises the court’s discretion to order that the Deceased’s body be returned to the plaintiff, who will manage the funeral arrangements and decide whether the remains should be cremated or buried. 

Final Orders

The Court issues the following concluding orders: 

  • The remains of the Deceased are to be released to the plaintiff, who will oversee the funeral arrangements. 
  • There is permission to revisit the matter regarding the identity of the funeral director to whom the Deceased’s remains are to be handed over. 
  • The case is otherwise dismissed. 
  • No orders regarding costs will be made.

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