Queensland Coroner Release Of Body Disputes And Competing Claims

Introduction to Release Orders and Competing Claims

In Queensland, the timely release of a deceased person’s body for burial or cremation is prioritised by the State Coroner to minimise any distress which may be caused to family members.

Accordingly, since these matters are expedited, family members are often only given a few days to provide submissions to the coroner if there is a competing claim for the release of the body.

Potts Lawyers has assisted many clients in competing claims for the release of the body of a family member.  This usually occurs in circumstances where the deceased died intestate (without a valid will), after which the Coroner will have to consider a variety of factors before deciding who to release the body to.

This dispute can be distressful, not only due to the short timeframes involved, but also because family members may disagree on the burial or cremation arrangements of the persons who have lodged competing claims.

 

Initial Steps & Request for Release Order

The family member’s nominated funeral director will usually submit a request for a release of the body (Form14A) together with an application for permission to cremate the body (if cremation is the chosen method).  On some occasions, these applications are made directly by family members or other persons.

As a starting point, before ordering the release, the State Coroner must be satisfied that the retention of the body is no longer necessary for the investigation of the death.   The coroner can only consider ordering a release pursuant to a Form 14 request once the coroner is satisfied that releasing the body will not impact the Coroner’s ability to make a finding as required under section 45(2) of the Coroner’s Act 2003 (Qld).

In some limited circumstances, the Coroner may decide it is necessary to retain tissue, whole organs, fetuses, or certain specified body parts.  This usually occurs where testing may be required in the future for an inquest or criminal proceedings.  In considering these matters, the coroner will usually consider the pathologist’s advice on why it may be necessary to retain that tissue.  If the coroner is satisfied that tissue retention is required, the State Coroner’s guidelines recommend that the Coroner informs the family of its decision where practicable.

 

The Coroner’s Consideration of Who is Seeking a Release Order

What may come as a surprise to many, is the fact that the Coroner’s Act 2003 does not prescribe the person to whom a body may be released.  In practice, however, it is usually a family member.  In a majority of cases, the family will act collectively in arranging the funeral.

However in many instances a dispute may raise amongst family members as to who is entitled to make funeral arrangements, especially when the Coroner orders the release of the body to a person other than the nominated family member specified in the “Form 1” report of death.

 

Family Disputes in relation to the Release of the Body

The State Coroner’s Guidelines lists the following circumstances in which the Coroner may decide a family dispute has occurred which may warrant further investigation:

• the coronial file contains evidence of a family dispute e.g. in the Form 1 summary or advice from the coronial counsellor
• the release request is made by the wife/husband of the deceased but it is clear from the file there is a de facto spouse
• the application is made by an estranged de facto spouse
• the application is made by adult children or another family member who live in a different area to the deceased person and the nominated family member
• the deceased person is indigenous and the applicant lives in a difference community to the deceased person and the nominated family member.

Where there are competing applications made by multiple individuals, the coroner will usually make contact with the nominated family member to ascertain whether they have any concerns with respect to the body being release to that competing applicant.

 

How the State Coroner Manages Competing Claims for Release of the Body

As stated earlier, the Coroner’s Act 2003 does not prescribe the person to whom a body may be released.   Similarly, in Queensland, there is no statutory hierarchy of persons who have a duty or right to dispose of a diseased person’s body (subject to the Cremations Act 2003).

Therefore, all disputes with respect to the right to control the disposal of a deceased person’s body are determined by the application of common law principles.  First, the common law gives priority to the executors of the deceased person’s estate.  If the individual died without a valid will (also known as dying “intestate”), then the priority of individuals is determined by the rules in the Uniform Civil Procedure Rules 1999 (UCPR) for applying for letters of administration.

 

What happens if two equally entitled persons Apply for a Release of the Body?

If two equally entitled persons make applications for the release of the body (for example, two surviving spouses, two surviving children, or two surviving parents), then the coroner may take into account additional factors, including:

• the deceased person’s wishes;
• religious, cultural or spiritual factors;
• where the deceased lived and for how long prior to death;
• the strength of the deceased’s association with particular people and places;
• the wishes of the deceased’s children;
• the convenience of family members in visiting the deceased’s final resting place;
• the closeness of the claimants’ relationship with the deceased; and
• the ‘sensitivity of the feelings of the various relatives and others who might have a claim to bury the deceased’

The State Coroner will usually provide the competing applicants with an opportunity to make written submissions on the factors set out above.

Anyone who has been asked to make a submission to the Coroner should obtain legal assistance preparing those written submissions where possible, since the considerations set out above are explained in further detail in case law.

If those authorities are utilized properly, they can improve the quality of the submissions and increase a person’s chances of succeeding.

 

What if the Coroner Has Decided to Release the Body to Someone Else?

If the Coroner has decided to release the body to someone else, the applicant who was unsuccessful can file an urgent application in the Supreme Court of Queensland. A person will be required to file this application prior to the Coroner’s decision taking effect, and will need to seek a stay of the decision to ‘pause’ the effect of the Coroner’s decision to release the body to that other party.

In practice, we have noticed that the State Coroner usually provides applicants with approximately 5 days prior to the decision taking effect, however this may vary from case to case.

If a person fails to apply to the Supreme Court prior to date and time in which the decision takes effect, or if that person does not successfully obtain a ‘stay’ order, then the body will be released to the other person whose application was successful.

Anyone who receives a letter from the Coroner advising them that their family member will be released to someone else, and who wants to challenge this decision, should seek legal advice immediately.

 

Why Potts Lawyers?

Potts Lawyers are experienced in administrative law matters, which includes Coroner’s matters, whether Coronial Inquests or disputes with respect to Coroner’s Investigations or the release of a body when competing applications exist.

In deciding these matters, the Coroner will apply legal principles derived from both the legislation and common law.  Accordingly, having a lawyer to assist in the preparation of advice and submissions can assist any applicant who is seeking to have the body released to them, so that they can make the appropriate funeral and burial or cremation arrangements.

Family disputes often arise in these circumstances.  For example, an estranged spouse of the deceased may file a competing application against the children of the deceased. Alternatively, the two surviving parents of the deceased may compete for the release of their child’s remains.

Persons who are suffering from the hurt associated with the death of a loved one and the stress of a competing application being made for the release of the body, are usually unable to think clearly enough to carry out an effective strategy in these matters.

If your loved one has passed away, and you suspect or know that someone has made a competing application for the release of the body, you should seek legal advice as early as possible to assess your options.

 

Seek Legal Advice

Potts Lawyers are one of the largest law firms in Queensland. We have law offices in Brisbane and on the Gold Coast.

Anyone dealing with Coroners matters can call Potts Lawyers to assess their eligibility for a free consultation with one of our experienced litigation lawyers.