Novakovic v Joseph Medcalf Funeral Services [2021] NSWSC 166

Novakovic v Joseph Medcalf Funeral Services [2021] NSWSC 166

In the absence of any competing claim, and with the support of the closest surviving relative and beneficiary, the plaintiff—named as executor in the later dated will—should be granted the right to claim and arrange for the deceased's burial, without expressing any view as to the validity of the will or executor's appointment.

Jurisdiction
Australia
Judgment Date
01 March 2021
Procedural Posture
Succession Burial Rights / Interlocutory/injunctive Relief; Final Orders Made
Outcome
Interim and final orders made granting plaintiff right to possession of the body for funeral arrangements, subject to notice to second defendant.
Legal Topics
['burial Rights' 'funeral Arrangements' "executor's Right to Possession of Body"]
['succession Law' 'common Law'] ['burial Rights' 'funeral Arrangements' "executor's Right to Possession of Body"]

Case Brief

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Procedural Posture

Succession Burial Rights / Interlocutory/injunctive Relief; Final Orders Made

Legal Issues

  1. 1 ['Who has the right to bury or dispose of the body of the late Anica Kanacki' 'Whether the plaintiff as executor is entitled to possession of the body' 'Whether Ms Zasentseva has a competing or superior right to possession and disposal of the body']

Ratio Decidendi

In the absence of any competing claim, and with the support of the closest surviving relative and beneficiary, the plaintiff—named as executor in the later dated will—should be granted the right to claim and arrange for the deceased's burial, without expressing any view as to the validity of the will or executor's appointment.

Court Disposition

Interim and final orders made granting plaintiff right to possession of the body for funeral arrangements, subject to notice to second defendant.

Orders

  • ['Leave to proceed on the amended summons deleting Joseph Medcalf Funeral Services and adding South Western Sydney Area Health District as third defendant.' "Noting of second defendant's non-opposition to the release of the body to plaintiff." 'Dispensation with service on the second defendant of further documents...