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Being laid to rest: A Cautionary Tale of Warring Executors

The opening words Justice Slattery used in his judgement in this case say it all:

"Betty Batson died on 2 December 2020. She wished to be cremated. But three weeks later, her wishes remain unfulfilled due to an entrenched dispute between her two executors, two of her daughters…"

One of the first duties that an executor must fulfil is to arrange a funeral and a burial or cremation. After the funeral of Mrs Batty's husband, who had died some 16 years earlier, Mrs Batty formed the firm view that she wanted to have a private cremation that the family could attend but no public funeral. Justice Slattery thought that Mrs Batty held this conviction because it would reduce family tension concerning her funeral. 

Unfortunately, the two executors named in the Will (who were two of her five surviving children) took this matter to the Supreme Court of New South Wales to resolve the "entrenched dispute" between them about "what ceremonial events should accompany her cremation".

Executors must act jointly. The consequence of this is that if executors do not agree, nothing happens. In this case, the Court had to intervene to make decisions where the joint executors could not do so, because of their disagreement.

In this sad situation, all of Mrs Batty's children said that they wanted to give effect to her wishes and could agree that Mrs Batty:

  • wanted to be cremated;
  • did not want any religious ceremony associated with her cremation;
  • had a preference for "something" that was modest and straightforward and not "showy".

This is where the agreement ended, and Mrs Batty's children split into two camps, with each of the executors on opposing sides. They could not agree on many other things, for example:

  • whether there should be a public funeral or private cremation;
  • whether there was to be a "bare" cremation and for Mrs Batty's ashes to be placed in a niche with those of her late husband.

Mrs Batty had completed a statutory declaration which included the words, "I do not wish for a funeral service to be carried out on my passing." The Court had to consider what Mrs Batty meant by those words and concluded that she wanted a "modest but dignified family gathering constructed around her cremation."

The Court had this to say about giving effect to Mrs Batty's wishes:

"Practical considerations arise in giving effect to the deceased’s wishes. The defendant’s vision for a cremation was very bare. Her idea was that the deceased would be cremated, and her ashes placed in the niche. She had not considered how other people attending the cremation might need to be supported in their grieving in an inclusive atmosphere and where family conflict was minimised. For example, many people attending a burial or cremation gain comfort from the presence of others and from calming music. And it is not possible to conduct a service that is compatible with the most basic norms of human dignity without something being said about the deceased. The defendant had not thought this through. The Court orders must provide something to accommodate these fundamental requirements, in a manner that is still compatible with the deceased’s desire not to have a public funeral. It is quite evident from the existing conflict within this family that if any one family member were to speak at the funeral that that may cause aggravation and resentment to other family members. That can be done by someone with empathy in a neutral position."

The Court then made some very specific orders about cremation and arrangements for the family gathering, which included:

  • who could, and could not, be invited to the cremation;
  • that neither of the executors could give a eulogy;
  • the senior officer of the funeral home would make many of the decisions, such as:
    • what was said about Mrs Batty at the cremation;
    • whether any photographs of Mrs Batty would be displayed;
    • what pre-recorded background music would be played (noting that there was a specific order that there was not to be any choral singing at the cremation);
    • whether floral arrangements could be displayed at the cremation; and
  • that no flowers could be brought to the cremation by those attending.

The combined legal costs of the executors in this case (being $50,000) were ordered to be paid by Mrs Batty's estate.

On 24 December 2020, Mrs Batty was finally cremated in accordance with the Court's orders – more than three weeks after passing.

One can only imagine what Mrs Batty would have thought about the need for the Court to intervene to lay her to rest, not to mention the associated legal costs incurred in the process.

This case highlights how crucially important the choice of executors is. Choosing people who cannot work together effectively will inevitably lead to the intervention of the Court.

A good estate planning lawyer will talk these decisions through with their clients, providing guidance on what attributes make a good Executor and what other factors should be considered when preparing their wills.

"The content of this publication is for reference purposes only. It is current at the date of publication. This content does not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be obtained before taking any action based on this publication."