Who Gets the Body After Death: A Disposal Dispute

When a loved one dies without a Will (otherwise known as dying intestate) it may be unclear who has the right or obligation to claim and dispose of the deceased’s body.  

Lotoaniu v Helu [2022] VSC 675, determined on 8 November 2022, considered these rights and obligations.  Sione Lotoainu died 11 October 2022 at age 55 intestate (without a Will) and the Victorian Coroner took possession of his body.   

The deceased’s de facto partner, Luisa Helu, successfully applied to the Coroner to have the body released to her for cremation, in order to keep his ashes in Melbourne with her and their 5 children. The Coroner wasn’t required to specify the mode of disposal upon release of the body, that is, either burial or cremation.  

The deceased had a son from a prior relationship, Alex Lotoaniu.  The son applied to the Victorian Supreme Court for release of the body to him for burial in a family plot in Sydney. The cremation was held-off by Court order (also known as an injunction) pending the outcome of Alex’s application to the Court. 

The Court considered whether the Victorian Coroner initially had the power to release the body of the deceased to his defacto partner, Luisa and further, whether the son had the right to appeal the decision, given he had not also made an application to the Coroner.   

The Judge noted that the Court would not comment on the merits of burial versus cremation or the parties’ reasons for their competing wishes, they could only determine the best custodian of the deceased’s body at law. 

The Court indicated initially, its role was to consider the deceased’s family circumstances and the deceased’s wishes which is made difficult if a person dies without a Will (intestate). The Court in making their decision, considered the following:

• That the deceased was Tongan and Catholic with three adult siblings, each alive. Five of his siblings had died young and were buried in the family plot with their father. 
• He and Luisa had 5 children.  
• Luisa was the wage earner, and the deceased was a stay-at-home father.  
• Their relationship of 25 years had periods of separation and was impacted by alcohol abuse. 
• At the time of death, there was a Family Violence Order against the deceased, taken out by his defacto.    

The Court considered whether the Coroner had powers to make a final decision with regard to custody of the body, or whether it fell to the Court to do so. Applications to the Supreme Court are only available to persons who have first made an unsuccessful application to the Coroner, so the son may not have had the right to appeal the decision.  Moreover, the Coroner had fulfilled their duties by sufficiently considering the required factors including any Will or testamentary instructions, a hierarchy of next of kin, and common law principles such as a presumption that the body goes to the person who is likely to be the administrator of the deceased’s estate. This means the Court may not have had the power to change the Coroner’s decision.  

Smith v Tamworth City Council (1997) 41 NSWLR 680, Gilliott v Woodlands [2006] VSCA 46 and other caselaw expresses that spouses will be preferred to children in the hierarchy of next of kin for the purposes of deciding to whom a Court will release a deceased’s body.   

The Judge in Lotoaniu v Helu considered that the person entitled to the deceased’s body was to be decided based on who had the ‘largest interest’ in the deceased’s estate which he determined was the deceased’s minor children. On that basis he granted custody of the deceased’s body to Luisa as the legal custodian of the deceased’s minor children. 

It’s unclear whether the Judge was also hesitant to deviate from the Coroner’s decision for lack of jurisdiction to override them, or, because the son may never have had the right to apply to the Supreme Court in the first place.  Perhaps the Judge was also hesitant to decide in favour of Luisa given her complicated relationship history with the deceased.    

 

If you have questions or you need help, our team of qualified estate administration and litigation lawyers at Chamberlains Law Firm can help you, contact us today.