Once a deceased's body has been cremated, what is the legal status of the remains (ashes) in Australia generally and NSW in particular?
Traditionally the thinking within the industry was that the cremated remains had no “property value” but the container within which they were placed, had value. That perception took no account of the “emotional” value associated with cremated remains. Clearly the related questions are complex and particular cases should be referred to legal practitioners.
In a 2019 address to a law seminar at the Australian National University , Dr Heather Conway (a Senior Lecturer in the School of Law at Queen’s University, Belfast) addressed the following topic: Earth to earth, ashes to whom? Feuding families, cremated remains and property law narratives.
The related promotional material summarised her paper as follows:
“The answer to these questions depends on whether or not ashes constitute property in any legal sense. As a tangible, physical substance the point might seem like an obvious one, but there are two barriers here. The first is the law’s inherent reluctance to ascribe full property status to human body parts; and while ashes may be ‘dehumanised’, they are still a highly symbolic representation of the person who has died. The second is the legacy of the old ‘no property in a dead body’ rule: if corpses are not legally classed as property then how can ashes be classed as such, unless we can apply the ‘work and skill’ exception in Doodeward v Spence (1908) or apply sufficient property law traits (possession, control, rights to exclude others) to circumvent the no property rule. This paper explores these issues, to address a growing legal- and practical- problem.”