Dying without a will can lead to all sorts of disputes among your loved ones, often centred around inheritance, property or beneficiaries, and sometimes even the fate of your deceased body.
While most people probably mean well, it can be difficult to determine what the deceased person really wanted. Without a will, a disagreement can lead to bitter quarrels among family members.
Disagreement between mother and partner over fate of deceased body
In a recent case, centred around a woman who died after a short battle with cancer, a dispute arose between her mother and the father of one of her children. Because she had failed to leave a will, her wishes were unknown.
The clash wasn't over her assets, but over the fate of her body. The mother said her daughter had planned to be cremated, but her partner said she'd wanted to be buried.
Partner claims his view takes precedence as woman's de facto
In a matter such as this, the usual order of precedence among relatives is the spouse (including de facto partner), child, parent, and then sibling.
After the woman died, the man sought urgent orders in the NSW Supreme Court to have himself named as her de facto partner and next of kin. The woman's mother disputed this.
If the woman's partner was legally her de facto, his belief that she wanted to be buried would take precedence over her mother's belief that she had planned to be cremated.
It was a complicated relationship. They had lived together, had a child together, but then separated. Shortly before the woman died, she had moved back in with him.
As there was no will, it would be up to the judge to decide.
Judge reviews deceased's Facebook account to determine relationship status
In making his decision, the judge took note that the woman's Facebook account still listed her status as single, that the man was not listed as a "friend" on her account, and that shortly before she died, she had said on Facebook that they were "not together".
The judge also noted she was a member of an online dating website, was on a single parent pension, and gave her mother as her emergency contact.
In accordance with Section 21C of the Interpretation Act 1987, along with the evidence provided in the woman's Facebook account, the judge determined that the woman was not in a de facto relationship with the man and ruled that her mother would have the say on the fate of her body. (See Dragarski v Dunn [2019] NSWSC 300.)
An up-to-date will is vital to ensure your wishes are respected when you die
Referring to a deceased person's social media accounts is not the ideal way to determine what that person would have wanted. However, this case shows that a court will go to some lengths to determine what was in a person's mind when they died.
Rather than risking a court dispute, it is far better to write a will, so that those you leave behind know your exact wishes. It is also wise to obtain legal advice, so you can be sure that your assets go wherever you decide.
Joshua Crowther
Will disputes
Stacks Law Firm
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
