If you have been watching Kitty Flanagan’s new TV show “Fisk” on the ABC, like we have then you will have seen a rather novel approach to the division of ashes in another fictional estate matter being dealt with at the offices of Gruber and Gruber.
In the second episode of ABC’s new comedy Fisk we meet Gina whose father’s will specifies that his ashes are to be divided between his family and his new girlfriend Kellie Joy Fraser.
Once again it seems poor will drafting is the reason why lawyers are involved, but something tells me that Kellie (with the Instagram handle @K_JoyLoveBug) who asserts herself as Alan Munster’s “widow” might have taken that step regardless. “Me and “Ali-Bear” were married in our hearts” Kellie explained and then set about “proving” her relationship with her own Instagram evidence that she and Alan had been an “official couple” since October last year. Before that she asserted there was evidence of “flirting around the office and a bit of sexting”.
Helen Fisk, armed with that information, then comes up with a mathematical formula based on the length of time Alan spent with his family (his wife of 48 years, and the time spent with his daughter Gina 40 years and son Anton 36 years) and the time spent with Kelly (7.44 months allowing for 13 days of “flirtation” before the relationship commenced “officially”). This formula nets Kelly a teaspoon of Alan’s ashes (4.7g rounded up to 5g). Just enough to put into a snow globe and to get a cremains tattoo. Yes – these are just some of many and varied ways in which cremains (cremated remains) or ashes can be used to remember a loved one.
It was quite the scene to watch how Fisk’s explanation of the formula bamboozles her opposing lawyer and the not so clever Kellie – who leaves the meeting agreeing to the “deal” asking her lawyer to make sure she gets “a good 5 grams, like from his heart” because she doesn’t want to be lumped with his “foot ashes”. We might laugh – but sadly this only highlights how morbid some of these disputes can get – after all if Alan had not been cremated, there would not be any argument over dividing up his body.
You will have to watch to episode to see how Helen Fisk manages the situation when her client Gina refuses to go through with the agreement to hand over any of her father’s ashes. Let’s just say that her solution is NOT one that any court would endorse as appropriate!!
Who has the last say?
Sadly, conflict over how the remains of a deceased loved one are to be dealt with – happens regularly. Disagreements arise over cremation vs burial, where remains will be laid to rest and the division of ashes – particularly if there is no Will or if the Will is silent or unclear on the details. So, it is important to understand how the law responds to these emotion filled conundrums.
The first thing to understand is that the body or the ashes is not an “asset” of the estate, nor is it “property” that anyone can claim to “own”. But at law – the person/s who will ultimately have the final say and the right to deal with the remains is the “legal personal representative” of the estate i.e. the executor/s named under a Will, or the person/s first entitled to a grant of letters of administration on intestacy if there is no will (aka administrator/s). Until a decision is made on what is to happen, that person holds the remains as trustee to make sure they are dealt with properly.
What factors should be taken into account?
The executor or administrator can’t just do whatever they want to. Before making their decision they need to take into account:
- The wishes of the deceased (expressed in the Will, in another document or spoken about)
- The wishes of the deceased’s family / next of kin (after all they are the ones left to mourn)
- Broader community, religious and cultural values, and
- Any other practical considerations (like cost, delay, location etc)
The second thing to understand is that just because the deceased expressed wishes in their will, those wishes are NOT automatically binding. Sometimes the wishes are impractical, or no longer appropriate at the time they need to be put into effect.
Ultimately, the executor or administrator has the final say, and while Australian courts have the power to order that remains be dealt with in a certain way where disputes arise – it is always better to try and resolve these issues without involving the courts.
Instead of substituting 5 grams of dead possum ashes (which was NO way to resolve this) – Fisk could have taken a harder line for her client Gina (who we assume was the executor of her father’s will). Taking into account:
- that Kellie would not have been able to meet the thresholds to qualify as a “de facto” spouse of Alan (after just 7.44 months in a relationship)
- the distress that Gina reported her mother was suffering at the thought of giving even a pinch of ashes of her husband of 48 years to the woman who had an office affair with him (coupled with Gina’s own distress)
- that if the will had been silent regarding the disposal of Alan’s remains, Kellie would not have had any say in the matter given the very recent and short duration of their relationship, and that result would be unlikely to offend any current community standards in all of these circumstances. It might even be argued that current community standards might align more closely with the wishes of the family in circumstances where the relationship with Keliie was only new and very short lived.
Gina may have been justified in simply refusing to be bound by the wishes expressed by her father in his will and instead choosing to keep all of the ashes interred in the same place. That would have left Kellie dissatisfied but perhaps not able (or willing to spend money) to seek the court’s intervention.
- If you are a named executor under a will or the closest next of kin entitled to administer the estate where there is no will -make sure you hire a specialist lawyer to give you robust advice about your role and your responsibilities (hint – if you’re in Queensland – use us!)
- If you are facing a dispute over the remains of your loved one – consider the factors listed above and then try to reach an agreement that addresses the concerns of those left behind. Understand that the executor or administrator will have the final say but a court can give directions if that person acts without considering the other factors.
At Resolve Estate Law, we are here to help you navigate any element of an estate administration, no matter how complex. If you need help with a dispute over the remains of a loved one contact us by phone or email, or click here to arrange your complimentary 15 minute call.