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What Happens To My Body After I Die?

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Who Has The Right To Decide What Happens To My Body?

Did you ever wonder what will happen to you after you pass away, especially if you do not have a Will? Frequently,  it sometimes seems that having a Will may be more effort than it’s worth.

However, the consequences of leaving your loved ones without a Will to set out your wishes can spiral from being a very simple task into a furiously-debated and very stressful battle.  As just one example, if you have no Will and have not discussed your wishes with your loved ones, how can they be expected to know your preferred funeral arrangements?  In recent news, the former de facto partner and the mother of deceased bikie Ricky Chapman have been fighting over his body.  Is it your wish that your Estate is diminished in this way, instead of it being of some use to your loved ones?

Mr Chapman died while working on a Rio Tinto mine site.  It was an unexpected and sudden death, and Mr Chapman did not leave a Will when he passed.  His de facto partner was successful in being given the right to make the funeral arrangements and subsequently keep Mr Chapman’s ashes, despite claims by Mr Chapman’s mother that the pair were not in a de facto relationship at the time of his death. The mother has since failed on two separate occasions to have the right to decide what happens to her son.  When applying the test for de facto in Western Australia, the Court ruled against the mother.  The case is now before the WA Court of Appeal with an outcome likely within the next couple of days.

This case may prompt you to ask whether having a Will makes a difference once you pass away? The answer is emphatically “yes”.  Having a legal signed Will serves many purposes including avoiding the situation created by Mr Chapman’s sudden death.

WHAT DOES THE LAW SAY?

When you make a Will, you appoint someone to be your ‘Executor’.  This person is empowered to deal with your Estate according to your wishes.  Along with distribution powers, the Executor has the right to the custody and possession of the body for disposal.  It is the responsibility of the Executor to dispose of the body. However, if there is no Executor, the next of kin has the right to decide upon the disposal of the body.  Whoever is empowered to dispose of the body also has the right to recover that expense from the Estate of the deceased.  A spouse, including a de facto spouse, has a higher right to body disposal decisions than other relatives of the deceased.

According to the Coroners Act, 1996 (WA) the default order of next of kin is:

  1. The person the deceased was legally married to; or
  2. Of or over the age of 18 and in a marriage-like relationship (de facto); or
  3. A child of the deceased of or over the age of 18; or
  4. A parent of the deceased; or
  5. A sibling of the deceased; or
  6. Any person nominated by the deceased to be contacted in an emergency.

The Chapman case demonstrates just one of the several re-occurring disputes between family members. There have been instances where divorced parents have disputed where an adult child is to be buried, between a sibling and an estranged wife, and even between the mother of the deceased and the child of the deceased. All of these instances have various factors which determined the outcome such as:

  1. Who was willing to pay for the funeral arrangements?
  2. Which party presented stronger evidence to prove that they had a better relationship with the deceased?
  3. Which party would facilitate the potential wishes of the deceased, such as cultural and spiritual beliefs?

Each matter is based on a case-by-case basis when it comes to dealing with the deceased funeral arrangement when there is no Will.  However, the examples above illustrate just how complex the disposal of your body may become.

THE BENEFITS OF HAVING A WILL DRAFTED BY A LAWYER

The conflict outlined above can be avoided if your Will is prepared by an experienced lawyer.  A signed Will:

  1. can set out your wishes and appoint someone you trust (your Executor) to ensure they are carried out.
  2. can provide specific instructions regarding the disposal of your body and avoid the decision being made by a Judge who had never met you or known what you would have preferred.
  3. set out specific details of who will receive what as your beneficiaries. Your Executor ensures that your Estate is distributed according to those details.
  4. gives you peace of mind and allows your loved ones to grieve your passing without the risk and stress of family conflict which will happen if they’re left to guess what you wanted to happen upon your death. Your loved ones will be forever grateful that you were thoughtful enough to take the time, before your passing, to create your Will. 
  5. Enables an experienced lawyer to advise you of the many pitfalls they have seen others create by how their Will is written, or not having a Will. Whether it is a large and complicated Estate or the sharing of your most modest belongings, an experienced lawyer has seen it all and can explain what will work best for you to achieve what you want to happen upon your passing.

For more information please contact us!

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Friday, 12 August 2022