Worrall Moss Martin News

Issue 27, March 2021

Mum’s body lay in a morgue for three weeks
while sibling Executors argued about her funeral.

Unfortunately, disagreements over a person’s body and funeral arrangements after their death are common.   We have previously reported on a number of cases, and reviewed the legal principles about who has the right and responsibility for the disposal and interment of the deceased person’s body (see Issue 5, Issue 9 and Issue 18 of Worrall Moss Martin News).   But what happens when the people with the ‘right and responsibility’ cannot agree?

The recent New South Wales case of McCredie v Batson [2020] NSWSC 1913, decided on 23 December 2020, required the Court to intervene between feuding Executors, making directions for the conduct of a cremation service for 93-year-old, Betty Batson.

The Facts:   Betty died on 2 December 2020.   After her death, a dispute arose between the Executors appointed by her Will (Betty’s two daughters) about the ceremonial events that should accompany her cremation.

The Executors agreed that their mother wanted to be cremated, and that she did not want any religious ceremony.   They also agreed that her preference was that the arrangements be modest and straightforward, and nothing too “showy”.   In every other respect – the Executors disagreed.

The essence of the disagreement was about “what Betty wanted” preceding her cremation:

one daughter Executor contended that Betty had indicated she wished to have a public funeral similar to her late husband, which had been conducted by White Lady Funerals; and
the other daughter Executor, and Betty’s son, said that Betty had indicated that she did not want a public funeral, and wished to be cremated followed by “a small private funeral with the family”. They presented a statutory declaration signed by Betty, where she indicated “I do not wish for a funeral service to be carried out on my passing”.

The cost of the cremation and funeral services of separate funeral companies put forward by the Executors was also a large part of the dispute.

On 18 December 2020 (after 16 days in dispute), proceedings were filed with the Court in an attempt to resolve the issues between the parties. The Court heard from each of the Executors, and several witnesses supporting each side provided evidence (and were cross-examined).

The Law: Building on from previous issues (where we reviewed the legal principles about who has the right and responsibility for the disposal and interment of the deceased person’s body) and in the context of the current case, the law provides that:

where two or more people are appointed as Executors, the law requires Executors to act jointly, and will not recognise separate acts (see Luke v South Kensington Hotel Company [1879] UKLawRpCh 96 and Re Mayo [1943] Ch 302); and
in circumstances where Executors cannot agree, new Executors who are likely to be able to agree may be appointed in their place, or the Court may take steps to resolve the dispute and impose orders.

The Decision: In this matter, there was not sufficient time for a new Executor to be appointed, and the Court, in the absence of an agreement, intervened to provide orders to ensure that, without further delay, the cremation was undertaken with dignity, and with the mutual family understanding of what was to occur in terms of proceedings before and after the cremation. Amongst other detailed orders, the Court directed that:

the deceased’s body be cremated on 24 December 2020 (22 days after her death);
the Executors engage White Lady Funerals to conduct a simple cremation;

with the exception of the deceased’s hairdresser (who was permitted to be invited to the cremation if she wished to attend), any member of the close or extended family of the deceased was permitted to be invited to the cremation – but no other persons may be invited or permitted to attend;
the cremation was not be advertised to the public by any media;
the Executors could cause any close or extend family member of the deceased to be excluded from the cremation;
the Executors were not permitted to give a eulogy at the cremation, nor have anyone speak on their behalf or give a eulogy; and
there was to be no choral singing at the cremation, however recorded music could be played.

The Costs of the Dispute: Apart from the breakdown of relationship between the siblings, and the fact that poor Betty’s body was left in the morgue for three weeks whilst the feud was resolved, in excess of $50,000.00 was incurred by the parties on legal fees.

In a later decision of McCredie v Batson (No. 2) [2021] NSWSC 78, which was handed down on 11 February 2021, the Court was asked to address the issue of costs. Advancing different reasons for taking their position, each Executor asserted that she had been substantially successful and the other party had not, and was entitled to an order for costs (meaning the other would cover all costs). In the alternative, both parties submitted that the costs be paid out of Betty’s estate.

The Court held that:

it was not appropriate to make an order for costs in favour of one party against the other because “it takes two to make an agreement and it is difficult for the Court to blame one or other sisters that consensus could not be reached in this case”; and
the costs should be paid out of the estate, however in determining the issue of how the burden of those costs should be borne within the estate, the Court noted that:

“Of the five children of the deceased, four of them took part in these proceedings and took sides: the plaintiff, the defendant, Peter Jasper-Batson and Marilyn Jasper-Batson. The only sibling who took no part of the proceedings was David”

and on this reasoning, the Court ordered that, within the estate, the burden of those costs be borne equally by all the beneficiaries other than Mr David Jasper-Batson.

Key Points: This case highlights the importance of:

preparing a comprehensive estate plan, including a Will that details (where appropriate) any wishes/preferences about funerals, memorial services, burial and cremation;

choosing the ‘right’ people to appoint as Executors;
seeking advice following death at the earliest opportunity; and
if you can, keeping out of disputes when your siblings go to war.

How Can We Help? Worrall Moss Martin Lawyers has specialist skills and experience in Estate Planning, Estate Administration and Estate Litigation matters, and can help you with any enquiries.

Please contact Kate Moss, Robert Meredith, Eve Hickey or Megan Bird if you, or your client, need expert advice and guidance about carrying out a deceased person’s wishes in relation to funerals, memorial services, burials and/or cremation following death.

Please contact Kimberley Martin, Casey Goodman or Ashleigh Furminger if you, or your client, need expert advice and guidance about preparing a comprehensive estate plan that documents and details wishes in relation to funerals, memorial services, burials and/or cremation, and the disposal of their body following death, to mitigate the risk against any potential dispute.

I’ve ‘misplaced’ the original deed for my trust ... what now?

A trust deed is a legal document setting out the rules for the establishment and administration of a trust.   The trust deed is an indication of the rights, powers and obligations of the parties to the trust, and a confirmation of their intention to enter into the trust relationship.

It is an important document because, although there are laws and legislation that govern the administration of trusts, they can be supplemented (and in some cases, displaced), by the specific provisions of an individual trust deed.

Ideally, the original trust deed will be stored in a safe place so that it can be easily accessed (or copied) when necessary.   If a trust deed is lost, it will become difficult (if not impossible) for the trustee to carry out routine trust matters, because of the uncertainty of the terms of that trust.

But what happens if the original executed trust deed is lost?   Is it possible to continue to administer a trust if all the trustee can find is an unsigned copy?

This “familiar” question was recently considered by the Supreme Court of New South Wales in The Application of M & L Richardson Pty Limited [2021] NSWSC 105.

The Facts:   M & L Richardson Pty Limited (“the Trustee”) was a corporate trustee for a family trust (“the Trust”).   The Trustee had been administering the Trust for many years, but was only able to locate an unsigned copy of the trust deed.   The original executed trust deed had been lost.

The Issue:   The Trustee sought the Court’s confirmation that it would be justified in continuing to administer the Trust in accordance with the terms of the unsigned copy of the trust deed, as sufficient evidence of the terms of the Trust.

The Law – Adapting or Confirming an Unexecuted Trust Deed:   A trust deed is similar to a contract, in that they both create binding terms or promises on behalf of the parties.   The law requires that a trust deed be properly executed, to demonstrate that the parties intended the document to take effect at a certain time and upon the agreed terms outlined in that document.

In this case, the Court considered two factors to determine whether the unexecuted copy of a deed could be relied upon:

the evidence to show that the original executed deed actually existed (that is, evidence that the parties had actually signed it at some point); and
if there was evidence that the deed actually existed, was there any evidence suggesting that the terms of the executed trust deed were different from those set out in the unsigned copy.

The Decision:   The Trust had operated a bank account for many years, and the Trust’s bank gave evidence that it would not have allowed the Trust to open a bank account without producing the original signed trust deed.   For this reason, the Court was satisfied that the original signed trust deed must have existed at some point (indeed, the Court was prepared to accept the requirements of banks to sight an original signed trust deed as a well-known fact, even if the bank had not confirmed this).   Additionally, the Trustee was able to provide evidence to the effect that it had, since about 2009 when the Trust was established, administered the Trust in accordance with the unsigned copy of the trust deed.   The Court accepted this – the continuous administration of the Trust in accordance with the unexecuted copy of the trust deed – was sufficient evidence that these were the uncontradicted terms of the Trust.

The Court found that the Trust was established by a trust deed which complied with execution requirements, and that the terms of the Trust were those that were set out in the unexecuted copy of the trust deed relied upon by the Trustee.   The Trustee was, by order of the Court, entitled to continue to administer the Trust in accordance with the unexecuted copy of trust deed.

Relevance in Tasmania:   The loss of a trust deed can happen anywhere, and although each State and Territory has slightly differing legislative provisions governing trusts, and slightly different Court procedures for dealing with a lost trust deed –the steps required to rectify the issue are substantially the same.

What if all Copies of the Trust Deed are Lost?   The Court’s decision in The Application of M & L Richardson Pty Limited was a reasonably straightforward one, because of the existence of the unsigned copy, and the evidence the Trustee was able to adduce.   Losing all copies of the trust deed is not a problem to be taken lightly, and can cause significant difficulty and uncertainty in continuing to operate a trust.   It is important to always keep a trust deed in a safe place – ensuring that both physical and digital copies are retained.

If all copies are lost, it is important to seek immediate legal advice about the continued operation of the trust.   Trustees risk exposure to personal liability if they continue to operate a trust without the protection and certainty of their specific powers under the trust deed.

How Can We Help?   Worrall Moss Martin Lawyers has specialist skills and experience in the establishment and administration of trusts, including advice about the administration of trusts where the original – or all copies of – the trust deed has been lost, and when it will be necessary to obtain a court order to protect the parties to the trust.

Please contact Kimberley Martin, Casey Goodman or Ashleigh Furminger if you, or your client, need expert advice and guidance about how to proceed with the administration of a trust, where the original deed has been lost.

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