Be careful who you choose as the executors of your Will!

Adele Anthony

Adele Anthony

Principal Lawyer at Your Legacy Lawyer

McCredie v Batson [2020] NSWSC 1913

A deceased’s executors are responsible for arranging their funeral and either a burial or cremation of their body in line with their testamentary wishes.

McCredie v Batson was a case decided in December 2020 in the New South Wales Supreme Court. In this case, the Court was required to intervene and give directions as to how the deceased’s cremation service should be conducted and what funeral home should hold the service. The reason for the Court’s intervention was because the two executors appointed by the deceased in her Will [two of her daughters] could not agree nor compromise on these issues.

At the time of the Court proceedings, the deceased had been dead for three weeks, her body kept in mortuary facilities, and her wishes to be cremated unfulfilled. All because her two daughters, as her executors, could not decide on how her ceremony should be conducted nor who should conduct it.

Interestingly, the deceased appointed her two daughters as her executors notwithstanding a family dispute had arisen (involving the two daughters) in relation to the deceased’s late husband’s funeral. This dispute had led to the deceased not wanting the same for her own funeral, insisting that hers be a private cremation for family members only which she thought would alleviate any familial tensions.

Regardless of the deceased’s attempts to reduce family friction, a contest emerged between the two executors after her death as to how their mother’s body should be disposed of and what her wishes were in this regard.

Both parties agreed that they wished to fulfill their mother’s wishes. They both accepted that she wanted to be cremated and did not want any religious ceremony. They both agreed that she did not want anything that was “showy”.

The disagreement centered around what their mother wanted prior to her cremation.

Some of her children contended that she wanted a public funeral conducted by White Lady Funerals. Others argued that she did not want a public funeral and wanted it organised by Simplicity Funerals.

The Court held that it would “ordinarily dismiss both executors” but instead determined that it would give directions for the conduct of the deceased’s funeral service for the executors to act upon in line with what it would determine were her wishes.

Evidence was led that after her husband’s death, the deceased said to one of her executors that it was “a really lovely service” and that she would like “something similar with White Lady Funerals”. Other evidence suggested that the deceased made it clear that she did not want a public funeral. Further evidence was lead suggesting that the deceased wanted “a small private funeral with the family” and that she did not want “a conventional funeral” like her late husband.

The Court was also provided with a statutory declaration signed by the deceased in which she stated: “I do not wish for a funeral service to be carried out on my passing”. The Court declared that this was enough to suggest that the deceased did not want a conventional funeral like her late husbands.

The Court held that from the evidence led, the deceased wanted a “modest but dignified family gathering constructed around her cremation”. It directed that the cremation was to be conducted by White Lady Funerals, given the deceased had previously expressed a preference for White Lady Funerals, notwithstanding arguments were led attesting to the fact that Simplicity Funerals were cheaper. The Court ordered that the funeral with White Lady Funerals could be conducted up to a maximum possible fee of $11,145.00.

The Court directed that its orders place:

“…a significant degree of responsibility upon the professional judgement 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 judgement is more likely to be available at a slightly higher priced funeral service provider.”

In relation to the difference between the costs of the two funeral service providers, the Court made mention 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 in 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.

The Court found that:

“Ms McCredie and Ms Batson [the Plaintiff and Defendant] simply failed in their fundamental duty as executors to reach a compromise [in a case] that really cried out for compromise”.

The court proceedings racked up $54,342 in legal costs which the Court ordered should come out of the deceased’s estate (apart from her son David’s share because he was the only child of the deceased who did not take part in the court proceedings).

This case highlights why it is extremely important to appoint appropriate executors and it is not always a trust issue.

When making your Will, questions such as ‘Will my executors be able to administer my estate without disagreement and hostility’ should always be considered in light of the surrounding circumstances of their relationship.

If you have any concerns about who you have appointed as your executors, contact Your Legacy Lawyer by emailing adele.anthony@yourlegacylawyer.com.au.

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