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. Betty Batson, Her Family and Her Cremation 1. Betty Batson made her last known will on 29 September 2004. In that will she appointed the plaintiff and the defendant as her executrices. Her husband died on 30 July 2011. His funeral was conducted by White Lady Funerals. There was disagreement within the family about the organisation of his funeral. Several family members gave evidence that the plaintiff took too much control of his funeral and it was not conducted in accordance with the wishes of Betty Batson, the deceased. There is some substance to this criticism. The Court accepts there was a residual underlying resentment from family members that the plaintiff was neither inclusive nor consultative on this occasion. That led to the deceased not wanting her funeral to be controlled in the same way as her husband's funeral had been. 2. The deceased's solution to this was to form a firm conviction that she did not want a public funeral but rather just a private cremation that the family might attend. She appears to have thought that this would reduce family tension. But what has emerged instead is a contest about what her wishes were for the disposal of her body after death. 3. The law on this matter is clear. It is fully stated, as it applies in this State, by Young J (as his Honour then was) in Smith v Tamworth City Council (1997) 41 NSWLR 680; (1997) 7 BPR 15,239. Relevantly, his Honour states the law as follows: that a named executor who is ready, willing and able to do so has the right to arrange for the burial of the deceased body; apart from any applicable statute dealing with the disposal of parts of the body, a deceased person has no right to dictate what will happen to his or her body; a person with the privilege of choosing how to bury (or cremate) a body is expected to consult with other stakeholders about the process (including any associated funeral) but is not legally bound to do so; where two or more persons have an equally ranking privilege to arrange the burial, the practicalities of burial without unreasonable delay will decide the issue; cremation is nowadays equivalent to burial; and the holder of a right of burial cannot use his or her right so as to exclude friends and relatives of the deceased expressing their affection for the deceased in a reasonable and appropriate manner, such as by placing flowers on a grave. The Court may take into consideration the deceased's wishes on the subject: see Frith v Schubert [2010] QSC 444 at [57], State of South Australia v Smith (2014) 119 SASR 247; [2014] SASC 64 at [61]; and see also Williams v Williams (1882) 20 Ch D 659. 4. The deceased died on 2 December 2020. Her surviving children were the plaintiff, the defendant, Peter Jasper-Baton, Marilyn Johnston and David Jasper-Batson. For convenience, and without intending any disrespect to any party or family member, the Court will refer to these family members by their first names. 5. The plaintiff, the defendant and the other children agree that they would all like to give effect to the deceased's wishes. They also agree the deceased wanted to be cremated and that she did not want any religious ceremony associated with her cremation. And they agree that her preferences were for something modest and straightforward and that she did not want anything "showy". 6. Beyond that they disagree. The disagreement is about what the deceased wanted preceding her cremation. The deceased's children fall into two camps. The plaintiff and David contend that she wanted a public funeral conducted by White Lady Funerals. The defendant, Peter and Marilyn say that she did not want a public funeral but that she just wanted to be cremated. But among them they differ as to exactly what that means. The defendant for example says that the deceased wanted the cremation organised by Simplicity Funerals and for nothing else to happen other than a bare cremation itself, followed by the placement of her ashes in a niche with her husband's ashes. 7. The deceased's body is presently being kept in mortuary facilities maintained by White Lady Funerals. Both White Lady Funerals and Simplicity Funerals are subsidiaries of Invocare Ltd, a publicly listed company. It is not difficult for her cremation to be arranged by either of White Lady Funerals or Simplicity Funerals. As a practical matter, one of the choices to be made is which of these two funeral directors will conduct the cremation or funeral. 8. The law requires two executors or trustees, such as the plaintiff and the defendant, to act jointly and the law will not recognise their separate acts: Luke v South Kensington Hotel Company (1879) 11 Ch D 121 and Re Mayo [1943] Ch 302; [1943] 2 All ER 440; (1943) 112 LJ Ch 257. If they cannot agree, it is not uncommon for new executors or trustees, who are likely to be able to agree, to be appointed in their place. But there is no time for that in this case. The other alternative is for the Court itself to resolve the differences between the executors or trustees. That is the only available practical course here. Any other alternative would lead to unacceptable delay in the deceased's cremation. 9. By Summons filed on 18 December 2020, the plaintiff applies for an order that the defendant instruct Invocare Ltd trading as White Lady Funerals to take all necessary steps to conduct a funeral and cremation of the deceased and, in the alternative, she seeks a declaration that she is authorized, without the defendant's consent, to direct, engage or instruct Invocare Limited to conduct and take all necessary steps in relation to the funeral and cremation of the deceased. 10. The Court will not grant this relief. It involves the Court ordering one executor to submit to the will of the other. Before making such an order the Court would ordinarily dismiss both executors. Instead, the Court will do its best to give instructions upon the matters upon which the executrices cannot agree and act in their place. This first involves ascertaining the wishes of the deceased, about which there is conflicting evidence, and then considering whether there are any factors which would modify how those wishes should be given effect. 11. The deceased's wishes. The evidence about the wishes of the deceased is in conflict but the Court's findings about the conflicting evidence of the parties allows those wishes to be ascertained reasonably well. 12. The Court accepts the plaintiff's evidence that after her husband's death the deceased said to her that it was "a really lovely service" and that she would like "something similar with White Lady Funerals". But in more recent years, the deceased made clear that any similarity to the public funeral aspect of the service for her husband was not what she wanted. The witnesses vary in their assessment of how simple she wanted her cremation to be. The plaintiff's husband, Mr McCredie, provided evidence which was close to the mark when he recorded her as saying she wanted "a small private funeral with the family". And the deceased's son Peter, a persuasive witness, said, convincingly, that she did not want a "conventional funeral" like her husband. 13. The Court also accepts that the deceased was quite competent and of full understanding when she filled out a statutory declaration with the assistance of Ms Marguerite Sparkes in mid-September this year in which she stated, "I do not wish for a funeral service to be carried out on my passing". That clearly meant she did not want a conventional funeral like the one for her husband. But what does it mean positively? The Court finds, from a range of conflicting evidence, that all she wanted was something simple framed around her cremation. She certainly did not want to compel family members who had not visited her in her final years to be present. But nothing in the evidence suggests that she was prepared to take positive steps to exclude them from a purely family cremation service. The Court concludes that a modest but dignified family gathering constructed around her cremation was what she wanted. 14. Giving effect to the deceased'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. 15. The parties have limited their choice of funeral directors down to Simplicity Funerals and White Lady Funerals. Both funeral service providers will conduct a simple cremation ceremony. Whether a simple cremation service is less expensive than the standard quotations for both companies is unclear on the materials before the Court. But the least expensive funeral quoted for Simplicity Funerals is $3,995 and the most expensive is $7,995. At the top end of its services, Simplicity Funerals overlaps with the basic funeral provided by White Lady Funerals at $7,976. But the range of service provided by White Lady Funerals rises to $13,820.50. 16. The Court will direct that instructions be given for the cremation to be conducted by White Lady Funerals. The reason for that is that the Court accepts that to the extent the deceased has expressed any preference for the person to conduct her cremation, the evidence supports her having some preference for White Lady Funerals. Although it was some time ago, the Court does not accept the deceased's preference in that regard changed. The Court does not accept the defendant's evidence that the deceased expressed a recent preference for Simplicity Funerals. The Court finds the defendant's evidence that the deceased expressed a preference for Simplicity Funerals to be improbable as it lacked any context. 17. The other reason that instructions should be given to White Lady Funerals is that their resourcing of the cremation service will be greater than that of Simplicity Funerals. The very conflict that has arisen between these parties means that higher resourcing levels and judgment are needed by the funeral director when conducting the cremation. The Court's orders place a significant degree of responsibility upon the professional judgment of the senior person who will be conducting the cremation. With such a divided family, someone under the authority of the Court's orders who can immediately command respect, must conduct the cremation. This is required for the process to move ahead honouring the deceased and providing comfort and reconciliation to those family members who are attending and avoiding spontaneous conflict within the family. It is to be expected that such professional judgment is more likely to be available at a slightly higher priced funeral service provider. 18. Good judgment will be required to ensure the conduct of the cremation service is done in conformity with the Court's orders which are reasonably complex and require a degree of diplomacy and attention to detail in their execution. The Court has gone into more detail than it normally would to minimise unexpected disputation within the family in relation to the cremation. 19. Whilst it is accepted the deceased wanted modesty and simplicity in the conduct of her funeral, the conflict between the family itself indicates that complete simplicity cannot be achieved. But that does not mean that the most expensive White Lady Funerals should be required in the circumstances. In the Court's judgment, the intermediate level of service provided by White Lady Funerals is appropriate, which is cited as costing a maximum of $11,145. The services to be provided have been asterisked in Exhibit C. The fact that what will be provided here is a relatively modest cremation service, rather than a public funeral, may mean that this intermediate figure should be discounted to a degree in discussions between the executrices and White Lady Funerals. But that is a matter for negotiation. The Court's orders should not be taken as indicating that that figure cannot be discounted. 20. In order to give perspective to the choice between White Lady Funerals and Simplicity Funerals, the Court ordered the legal representatives of the parties to provide an estimate of their costs to date in this litigation. The plaintiff's costs, including solicitors and counsel, were $29,000. The defendant's costs of Mr Kent were just under $21,000. The Court does not record these figures in order to criticise the lawyers in this case. The Court has received a high degree of assistance from the lawyers on both sides in what was an urgently conducted proceeding. These fees are reasonable in the circumstances. 21. But the figures illustrate that the parties have been prepared to spend $50,000 on legal expenses to argue, in part, about the difference between two funeral companies where the substantive difference between the intermediate charges is of the order of about $5,000. Of course, wider issues are at stake here than mere money. But the Court's decision to instruct White Lady Funerals is hardly disproportionate to the party's willingness to expend funds on this dispute. 22. The Court's orders below deal with several detailed matters that have not been fully explained in these reasons due to the lack of time. But the Court has raised many of them during argument between the parties at the hearing. Conclusions and Orders 1. For these reasons the Court will make the following orders and directions. 1. The Court notes that: 1. the two executors of the late Mrs Betty Batson who died on 2 December 2020 (referred to in these orders as "the deceased"), namely the plaintiff, Janise McCredie, and the defendant, Karen Batson, cannot agree upon the conduct of her cremation and that because of that disagreement no clear instructions can presently be given for the disposal of her body; and 2. in the absence of such agreement, and to ensure the cremation of the deceased is done with dignity, with mutual family understanding of what is to occur and without further delay, the Court now intervenes in the administration of the deceased's estate to give instructions for the conduct of the cremation; 1. Further note that this order is authority for the funeral directors nominated by the Court to conduct the cremation of the deceased in accordance with the Court's orders; 2. The plaintiff and the defendant are (a) each ordered to instruct the said funeral directors to conduct the cremation of the deceased in accordance with these orders, (b) each restrained from giving any instructions to the said funeral directors that are inconsistent with these orders, and (c) each ordered to provide a copy of these orders to the said funeral directors. 3. Order that the deceased's cremation will be carried out on 24 December 2020 in accordance with the following instructions; 1. the plaintiff and the defendant will engage White Lady Funerals to conduct the cremation generally in accordance with the service recorded in the asterisked items in Exhibit "C" that are presently offered by White Lady Funerals, up to a maximum possible fee of $11,145; 2. these instructions will not prevent the acquisition of only cremation services at rates discounted from the listed package prices offered by White Lady Funerals, if that is appropriate for a cremation as simple as that provided for by the present orders. 3. with the exception provided for in subparagraph (d) any member of the close or extended family of the deceased may be invited to her cremation but no other persons may be invited or permitted to attend; 4. the deceased's hairdresser may be invited to her cremation if she wishes to attend; 5. the deceased's cremation will not be advertised to the public by any media; 6. neither the plaintiff nor the defendant shall cause any close or extended family member of the deceased to be excluded from her cremation; 7. as soon as reasonably practicable after these orders have been communicated to White Lady Funerals, the senior officer from White Lady Funerals who has responsibility for conducting the cremation ("the senior officer") is requested to consult equally with such of the five children of the deceased as wish to make themselves available for consultation, with a view to receiving concise information and reflections about the deceased; 8. while conducting the cremation, the senior officer is instructed to offer briefly such concise information and reflections from the family about the deceased as in her professional judgment are appropriate to the family and to the circumstances of the deceased's cremation; 9. neither the plaintiff nor the defendant may give any eulogy at the cremation or in any way obstruct or interfere with the work of the senior officer to comply with these instructions and orders and the plaintiff and the defendant shall not cause or permit anyone else to speak on their behalf or to give a eulogy at the cremation; 10. the senior officer is requested to inform all persons attending the cremation that she alone will provide brief background and reflections about the deceased; 11. the senior officer is requested to conduct the cremation with a theme of modesty and without excessive display in accordance with the wishes of the deceased; 12. whether any photographs of the deceased will be displayed at the cremation will be left to the professional judgment of the senior officer after consultation with the children of the deceased; 13. there will be no choral singing at the cremation, but in the professional judgment of the senior officer some recorded background music may be played during the cremation; 14. no one attending the cremation will be prevented from bringing flowers to the cremation; 15. whether or not any floral arrangements are to be displayed at the cremation will be a matter for the judgment of the senior officer, taking into account the duration of the cremation, the numbers of family members attending, the nature of the cremation venue, the views of family members and the wishes of the deceased for a modest funeral without excessive display; 16. the ashes of the deceased will be placed in the niche reserved for them with the ashes of her husband; 17. any matter relevant to the conduct of the deceased's cremation that is not covered by these orders will be decided by the senior officer in the exercise of her professional judgment. 1. The costs of White Lady Funerals will be paid out of the deceased's estate; 2. Reserve for further submissions and consideration the question of what costs orders will be made in these proceedings, whether the costs of the present application will be paid for out of the estate, or whether the costs will be borne by the plaintiff's or defendant's shares of the estate; and 3. Adjourn before me at 9:30am on 10 February 2021 the issue of costs and the question of what directions will be made for the conduct of the balance of the proceedings. 4. Liberty to apply. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 December 2020