Dispute over fate of deceased’s body determined by consulting Facebook

28th Jan 2021

Dying without a will can lead to all sorts of disputes among loved ones, often centred around inheritance, property or beneficiaries, and sometimes even the fate of the deceased’s body.

Disagreement between mother and partner over fate of deceased’s body

In the case of Dragarski v Dunn [2019] NSWSC 300, a dispute arose between a deceased woman’s mother and the father of one of the deceased’s children. The deceased woman, Ms Dunn, did not leave a will and as such, her wishes were unknown.

The dispute wasn’t over Ms Dunn’s assets but rather the fate of her body. Her mother said that she had planned to be cremated but her partner, Mr Dragarski, contended that she had wished to be buried.

Partner claims his view takes precedence

In a matter such as this, the usual order of precedence among relatives is: the spouse (including de facto partner), child, parent, and then sibling.

After Ms Dunn’s death, Mr Dragarski sought urgent orders in the NSW Supreme Court to have himself named as her de facto partner and next of kin. Ms Dunn’s mother disputed this.

If Mr Dragarski was legally her de facto partner, his belief that she wanted to be buried would take precedence over her mother’s belief that she had planned to be cremated.

However, the relationship between Ms Dunn and Mr Dragarski was complicated. They had lived together and had a child together, but then separated. Shortly before Ms Dunn’s death, she had moved back in with him.

As there was no will, it was up to the judge to decide.

Judge reviews deceased’s Facebook account

In making his decision, Pembroke J noted that Ms Dunn’s Facebook account listed her relationship status as single, that Mr Dragarski was not listed as a ‘friend’ on her account, and that shortly before she died, she had posted on Facebook that they were ‘not together’.

Pembroke J also noted that Ms Dunn was a member of an online dating website, was on a single parent pension, and listed her mother as her emergency contact.

In accordance with s21C of the Interpretation Act 1987 (NSW), along with the evidence provided on Ms Dunn’s Facebook account, Pembroke J held that the couple were not in a de facto relationship and ruled in favour of Ms Dunn’s mother to decide on the fate of Ms Dunn’s body.

An up-to-date will is vital

Referring to a deceased person’s social media accounts is not the ideal way to determine what that person would have wanted. However, this case shows that a court will go to some lengths to determine what was on a person’s mind before they died.

An edited version of this article was first published on Stacks Law.

Joshua Crowther is a lawyer in the Taree office of Stacks Law Firm and an accredited specialist in wills and estates by the Law Society of NSW. He joined Stacks in 2011 and is now the practice manager of a very busy wills and estates practice. He holds a Masters of Applied Law (Wills and Estates) from the College of Law in addition to his Bachelor of Laws (First Class Honours) and a Bachelor of Arts Communications (Honours). Josh deals with both simple and complex estate matters. He is well-versed in making complex applications to the Supreme Court regarding contentious wills (eg. when people have limited capacity to make a will) and has made dozens of applications to the Supreme Court for statutory wills. Josh handles family provision matters, acting for executors when defending wills, or acting for claimants against wills. He conducts mediations and hearings in Sydney on a regular basis.

The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).

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Tags: Wills and estates