Milson v Milson [2020] NSWSC 919

Milson v Milson [2020] NSWSC 919

The wife was the appropriate person to be granted the special administration and custody of the body because, although the deceased was an Aboriginal man and his mother's cultural beliefs deserved respect, the court found that the marriage had not ended, the deceased had expressed a wish to be cremated, his wife and children wished for cremation, and the children's wishes were entitled to very great weight. On the evidence, those factors outweighed the mother's wish for burial on country.

Jurisdiction
Australia
Judgment Date
20 July 2020
Procedural Posture
Equity Proceedings Concerning Special Grant of Letters of Administration for Custody of the Deceased's Body and Funeral Arrangements / Principal Judgment After Hearing
Outcome
Plaintiff's summons dismissed; defendant wife to be appointed administrator for a special grant relating to custody of the deceased's body and funeral and cremation arrangements, with costs to be addressed if necessary.
Legal Topics
['special Grant of Administration' "custody of Deceased's Body" 'burial or Cremation' 'aboriginal Cultural and Spiritual Considerations' 'intestacy' 'spouse and Next of Kin Priority']
['succession' 'equity' 'burial Rights'] ['special Grant of Administration' "custody of Deceased's Body" 'burial or Cremation' 'aboriginal Cultural and Spiritual Considerations' 'intestacy' 'spouse and Next of Kin Priority']

Case Brief

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Procedural Posture

Equity Proceedings Concerning Special Grant of Letters of Administration for Custody of the Deceased's Body and Funeral Arrangements / Principal Judgment After Hearing

Legal Issues

  1. 1 ["Whether the deceased's wife or mother should be granted letters of administration for the purpose of custody of the deceased's body and arranging the funeral." 'Whether the deceased should be buried on country in Gilgandra or cremated with his ashes retained by his wife and children.' "What weight should be given to the deceased's identification as an Aboriginal Wiradjuri man, the wishes of his mother, wife and children, and the deceased's own expressed wishes." "Whether the deceased's marriage had ended so as to affect the wife's claim to administer and arrange disposal of the remains."]

Ratio Decidendi

The wife was the appropriate person to be granted the special administration and custody of the body because, although the deceased was an Aboriginal man and his mother's cultural beliefs deserved respect, the court found that the marriage had not ended, the deceased had expressed a wish to be cremated, his wife and children wished for cremation, and the children's wishes were entitled to very great weight. On the evidence, those factors outweighed the mother's wish for burial on country.

Court Disposition

Plaintiff's summons dismissed; defendant wife to be appointed administrator for a special grant relating to custody of the deceased's body and funeral and cremation arrangements, with costs to be addressed if necessary.

Orders

  • ["The plaintiff's summons is dismissed." "The orders sought in paragraphs one and two of the defendant's First Cross-Claim Cross-Summons filed 28 May 2020 are to be made." "The defendant is to be appointed administrator of the estate of the deceased for the purpose of a special grant of administration, custody of...