Mourish v Wynne

[2009] WASC 85

Supreme Court of Western Australia

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Interrogate

Catchwords

1. Succession
2. › Burial and funeral rights
3. › Right to arrange funeral
4. › Dispute between relatives
5. › No executor or administrator
6. › Whether entitlement to administration determinative
7. › Relevance of practical circumstances
8. › Relevance of cultural and spiritual factors
9. › Relevance of deceased's connections and associations during lifetime
10. › Administration Act 1903 (WA), ss 4, 14(1), 25(1)
1. Succession
2. › Burial and funeral rights
3. › Right to arrange funeral
4. › Disputed paternity of deceased
5. › Whether unresolved paternity dispute affects determination of funeral arrangements
1. Evidence
2. › Affidavit evidence
3. › Late service of affidavits
4. › No cross-examination by agreement
5. › Whether findings of fact should be made on controversial matters where opposing party had no practical opportunity to respond

Quick Take

In disputes over funeral arrangements where no executor has been appointed, the entitlement to a grant of letters of administration is not determinative. The court will have regard to practical circumstances, the sensitivity of feelings of relatives, cultural and spiritual matters, and — importantly — the deceased's connections and associations during their lifetime. Where the deceased was raised by a person other than a parent and had their primary connections with that person and the place where they lived, those connections may be the weightiest factor.