Smith v Tamworth City Council [1997] 41 NSWLR 680.

Despite the general rule, people often do, and should, specify two things in their will:

how they wish their body to be disposed of (e.g. buried or cremated); and
whether or not they want to make their organs available for donation.
On the latter point, the general rule about no property in the body is trumped by the
operation of statutory provisions that allow for your organs to be donated. In addition to
specifying your decision regarding organ donation in your will, you can also note your
wishes by registering online at www.donorregister.gov.au.

With respect to the former, it is important to express your wishes in your will so your
executor knows what you would have them do. It is ultimately your executor who is
responsible for your burial. To this end, your executor has the legal right to custody and
possession of your body until your burial: R v Fox [1841] 2 QB 246. This has been
described as a “quasi-proprietary” right to the body by Young J in Smith v Tamworth City
Council (1997) 41 NSWLR 680 (Tamworth City Council).

What happens if there is no will?

Unfortunately, where a person dies intestate it can be difficult to determine who holds
burial rights. This problem can be made all the more challenging to resolve as burial often
needs to take place shortly after death. The added time pressure can exacerbate the difficult
emotional journey the family of the deceased is undergoing. The issue can also become
more difficult where burial has already occurred and a member of the family disagrees with
the method.

Ultimately, the Court will have to determine the appropriate person with respect to the
particular facts of the case, with respect to any “religious, cultural or spiritual matters”:
Jones v Dodd [1999] SASC 125. However, there are a number of principles to help guide
the Court in the given circumstances. These come from Young J’s decision in Tamworth
City Council, and are as follows:

where there is no executor, the person with the best claim to administration of the
deceased’s estate will have the privileges of the executor;
a surviving spouse or de-facto partner will be preferred to the rights of children; and
where there are two people with equal ranking, the practicalities, of ensuring burial takes
place without delay, will decide the issue.
Despite these guiding principles, the matter is ultimately one for the Court. It may be made
all the more challenging where there may be a dispute as to whether a person is a de-facto
partner of the deceased. The risk of uncertainty in this area further emphasises the
importance of keeping a current will – a will is not just about your personal assets, but
about your body as well.

If the deceased made a Will, the answer to the "who" question is found in the case of Smith
v Tamworth City Council and Ors [1997] NSW 197. The person named as an Executor
within the deceased's Will is responsible for administering the deceased's estate and holds
the responsibility of deciding how to dispose of the deceased's remains.
 What is the law before this
A person has no right to control the final disposal of their body, other than by choosing an
executor who then has, subject to limited exceptions, an absolute right to decide how the
body shall be disposed of.7 The reason for this is that there is no property in a dead body
(the ‘no property’ rule).8 As Justice Kay held in Williams v Williams, ‘If there be no
property in a dead body it is impossible that by will or any other instrument the body can
be disposed of’.9

The common law principles regarding the right to dispose of a body were
summarised by the Court (referring to the case of Smith v Tamworth City
Council (1997) 41 NSWLR 680):
1. A person named as an executor in the deceased’s will has the right to
arrange for the burial of the deceased’s body.
2. Apart from appointing an executor, a person may not dictate what will
happen to his or her body.
3. The person responsible for the burial of the body is expected to consult
with other stakeholders, but is not legally bound to do so.
4. If no executor is named, the person with the highest right to apply for a
grant of administration will have the same right regarding disposal of the
body as a named executor.
5. The right of the surviving spouse or de facto spouse will be preferred to the
right of the deceased’s children.
6. Where more than one person has an equal right to disposal, the
practicalities of burial without unreasonable delay will prevail.

In the Australian case of Smith v Tamworth City Council" Young J thought

that the grantee of an exclusive right of burial does have an interest in land,
saying:
'There is a nice question as to whether any assignment of the right of burial
would be an assignment of an interest in land. I rather think it would because
the irrevocable licence brought about by the interment of David in the ground
makes the licence more than a contractual licence. It is really a licence coupled
with a grant. As I said in 39 ALJ 50 at 52. although there is no profit a rendre
[sic], the licence is not a naked one and may be protected as a right of property
. . . As an interest in the land is involved, there would need to be some writing
to deal with the assignment for it to be recognised pursuant to s 23C of the
Conveyancing Act.'
The authorities in which the nature of an exclusive right of burial has been
discussed have proceeded on the basis that there are three possibilities: (a) that
the grantee has an estate in the soil of the grave plot, (b) that he has an easement,
or (c) that he has some form of licence
remi - Australia: Smith v Tamworth City Council [1997] 41 NSWLR 680
“There is a nice question as to whether any assignment of the right of burial would be an
assignment of an interest in land. I rather think it would be because the irrevocable licence
brought about by the interment of David in the ground makes the licence more than a
contractual licence. It is really a licence coupled with a grant. As I said in 39 ALJ 50 at 52,
although there is no profit a rendre [sic], the licence is not a naked one and may be
protected as a right of property…As an interest in the land is involved, there would need to
be some writing to deal with the assignment for it to be recognised pursuant to s 23C of the
Conveyancing Act.”