The Facts
Woman appoints two daughters as co-executors of estate
A 93-year-old mother of five died on 2 December 2020.
When her husband died in 2011, his public funeral was conducted by White Lady Funerals. There was some disagreement amongst the children about the organisation of the funeral.
In a will dated 29 September 2004, the mother had appointed her daughters, J and K, as joint executors of her estate.
It was their duty as executors to arrange a funeral and a burial or cremation of their mother’s body, in conformity with the deceased’s wishes if possible.
Disagreement between sisters over funeral arrangements
Although J and K agreed that their mother wished to be cremated and did not want anything “showy”, they disagreed about what ceremonial events should accompany her cremation.
The sisters argued over this point for three weeks while their mother’s body lay in the mortuary.
However, they both wanted their mother’s body cremated by Christmas.
Supreme Court asked to intervene to resolve dispute
So, on 18 December 2020, J applied to the Supreme Court for an order authorising her to engage White Lady Funerals to conduct a public funeral and cremation.
K countered that their mother had not wanted a public funeral. K instead wanted to organise a straightforward cremation without any ceremony, followed by placing her mother’s ashes in a niche with the husband’s ashes.
Expert commentary on the court's decision
Court rejects plaintiff’s request for public funeral
In McCredie v Batson [2020] NSWC 1913, the court refused to grant the order sought by the plaintiff, Jenise McCredie, for a public funeral conducted by White Lady Funerals, leaning more toward the position set out by her sister, Karen Batson.
Court will usually replace joint executors who cannot agree on funeral plans
The law states that two or more executors named in a will are required to act jointly. The law will not recognise their separate acts and it is essential that all aspects of the administration of the estate are agreed to by both executors.
Granting Ms McCredie’s order would have involved the court making an order for one executor to submit to the will of the other.
The court noted that rather than make such an order, the usual course of action would be to dismiss both executors and appoint new executors who are able to agree.
Court acts to determine funeral arrangements rather than replacing executors
Given Ms McCredie’s and Ms Batson’s desire to cremate their mother’s body by Christmas, there was no time for the court to appoint new executors.
Therefore, the court intervened to resolve the dispute itself, ensuring that the deceased could be cremated in a timely manner.
Law concerning burial of a deceased person
The court, quoting the following passage from Smith v Tamworth City Council (1997) 41 NSWLR 680, outlined the law concerning burial of a deceased person:
Court ascertains deceased’s wishes for modest family gathering constructed around cremation
In determining what orders to make regarding the funeral, the court first had to ascertain the wishes of the deceased, and then consider whether there were any factors that would modify how those wishes should be given effect.
The court accepted Ms McCredie’s evidence that after the husband’s funeral, the deceased said it was a lovely service and she wanted something similar with White Lady Funerals.
However, the court also accepted that the deceased was competent and of full understanding when she made a statutory declaration that she did not wish for a funeral service to be carried out on her passing.
According to the court, this clearly meant that the deceased did not want a conventional funeral like the one for her husband.
Considering the range of conflicting evidence, the court found that instead she wanted a private and modest, but dignified family gathering constructed around her cremation.
Court considers practical considerations in giving effect to deceased’s wishes
The court noted that there were practical considerations in giving effect to the deceased’s wishes for a private and dignified family gathering.
Ms Batson’s vision of the cremation was very bare and did not consider that people might need to be supported in their grieving in an inclusive atmosphere and where family conflict was minimised.
The court said that its orders must provide something to accommodate these fundamental requirements in a manner that was still compatible with the deceased’s desire not to have a public funeral.
Court orders private funeral conducted by White Lady Funerals
The court directed that instructions be given for the cremation to be conducted by White Lady Funerals.
This was on the basis that the deceased had expressed a preference for White Lady Funerals and because that funeral director would have the necessary professional judgement to deal with a family which was as divided as this family was.
The court gave instructions for White Lady Funerals to conduct a relatively modest cremation service, rather than a public funeral.
Importance of clearly articulating funeral wishes and choosing executors wisely
The court’s orders as to how the funeral was to be conducted were very prescriptive.
No one, except the funeral director, could give a eulogy or make any remarks about the deceased.
There was to be no choral singing, but in the professional judgment of the senior officer, some recorded background music could be played.
So, in the end, neither sister got the send-off for their mother that she had envisaged.
What they did get was a $51,000 legal bill for an argument over a funeral that cost $11,000.
This case highlights the value of very clearly articulating your funeral wishes if your plan is to appoint family members as joint executors in your will.
It also highlights the risk in appointing joint executors who have a contentious relationship. As the court observed in McCredie v Batson (No. 2) [2021] NSWSC 78 (a decision ordering that both sisters’ legal costs be paid out of the estate), this “litigation was conducted with a level of persistent acrimony between two sisters that is difficult to comprehend to an objective observer”.
For more information, please see When co-executors go to war, will there be anything left of the estate? Which case won? and How do you choose an executor for your will? – the horror story edition.