McCredie v Batson [2020] NSWSC 1913

Supreme Court New South Wales

Medium Neutral Citation: McCredie v Batson [2020] NSWSC 1913 Hearing dates: 21 & 22 December 2020 Date of orders: 23 December 2020 Decision date: 24 December 2020 Jurisdiction: Equity - Duty List Before: Slattery J Decision: The Court intervenes and makes directions for the conduct of a cremation service for the deceased. Catchwords: EXECUTORS – the two executors of the estate of their late mother cannot agree upon the form of service for her cremation – discussions have been unable to reconcile their differences – the deceased died approximately three weeks ago – insufficient time or opportunity during the Court vacation to appoint fresh executors or administrators to decide upon the form of service for the deceased's cremation – the Court is asked to intervene. Cases Cited: Frith v Schubert [2010] QSC 444 Luke v South Kensington Hotel Company (1879) 11 Ch D 121 Re Mayo [1943] Ch 302 Smith v Tamworth City Council (1997) 41 NSWLR 680 State of South Australia v Smith (2014) 119 SASR 247 Williams v Williams (1882) 20 Ch D 659 Category: Procedural and other rulings Parties: Plaintiff: Jenise McCredie Defendant: Karen Batson Representation: Counsel: Plaintiff: A. Crossland; J. Widjaja

Solicitors: Plaintiff: R. Lewis, Elder Law Defendant: T. Orlizki; R. Kent, Kent Attorneys File Number(s): 2020/359014 Publication restriction: No

EX TEMPORE Judgment 1. 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, about what ceremonial events should accompany her cremation. 2. One of the first duties of executors is to arrange a funeral and a burial or cremation of the body of the deceased person, if possible, in conformity with the deceased's wishes. The executors both want the deceased to be cremated by Christmas. They have therefore invited the Court, sitting in the Court's vacation period, to resolve their paralysis about this issue so that the deceased can be cremated. 3. The proceedings were filed on 18 December 2020, made returnable on 21 December 2020, argued on 22 December 2020 and decided today, 23 December 2020. As a result, the deceased will be able to be cremated on Christmas Eve. 4. It is regrettable that this dispute was not brought before the Court long before this, but now that it is here, the Court will seek to resolve it as rapidly as possible. The Court was much assisted by the lawyers on both sides. Mr A. Crossland and Mr J. Widjaja of counsel for the plaintiff instructed by R. Lewis, Elder Law and Mr R. Kent, of Kent Attorneys for the defendant. 5. This matter was decided during a very busy duty list and so only limited reasons can be given for the Court's conclusions. The Court heard each of the plaintiff and the defendant and several witnesses were cross-examined on each side. The background, the different positions of each of the parties and the Court's reasons to its conclusions may therefore be shortly stated.