[2024] SASC 98

Applicants: MICHAEL MAROS AND ALEXANDRA ECKERT Counsel: DR V GILLILAND - Solicitor: CARPENTER & ASSOCIATES First Respondent: AMMUN LUCA Counsel: MR JA RICHARDS - Solicitor: OLD PORT CHAMBERS Second Respondent: LISA GRIEG In Person Third Respondent: IVAN BUTLER FAMILY FUNERAL DIRECTORS No Attendance Hearing Date/s: 05/08/2024 File No/s: CIV-24-006729 B SUPREME COURT OF SOUTH AUSTRALIA (Civil: Application) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment 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 in which it was generated. MAROS & ANOR v LUCA & ORS [2024] SASC 98 Judgment of the Honourable Justice Bampton 8 August 2024 SUCCESSION - PERSONAL REPRESENTATIVES - RIGHTS, POWERS AND DUTIES - DISPOSAL OF BODY HEALTH LAW - BURIAL AND CREMATION - BODIES AND GRAVES HEALTH LAW - BURIAL AND CREMATION - POWERS OF AUTHORITIES The deceased died on 1 July 2024, survived by her husband who asserts he is her executor under a 1998 will, daughter, and son who asserts he is executor under a 2023 will – where the validity of the 2023 will is challenged and there is uncertainty as to the identity of the executor of the deceased’s estate – where there is a dispute regarding the method and place of disposal of the deceased’s remains – whether, in the circumstances of the deceased’s son’s objection to cremation, s 9(3) of the Burial and Cremation Act 2013 (SA) precludes cremation – whether there is evidence of the deceased’s wishes regarding disposal of her remains. HELD: An order of the Court permitting cremation resolves any dispute such that an objection within the meaning of s 9(3) of the Burial and Cremation Act 2013 (SA) cannot be maintained – the first applicant is the person entitled to make decisions regarding the deceased’s remains – the third respondent is permanently restrained from releasing the deceased’s remains into the care, custody, or control of the first or second respondent or their agents – the first applicant be at liberty to retain the ashes of the deceased during his lifetime. Coroners Act 2003 (SA) s 32; Burial and Cremation Act 2013 (SA) ss 3, 5, 7, 8, 9, 10, 11, referred to. Calma v Sesar (1992) 106 FLR 446; Marschall v Elson [2023] SASCA 1; Marschall v Elson (No 2) [2023] SASCA 3, considered. -- 1 of 24 -- -- 2 of 24 -- MAROS & ANOR v LUCA & ORS [2024] SASC 98 Civil: Application 1 BAMPTON J: Michael Maros (“Michael”) wishes to decide what happens to the body of his wife, Kathleen Anne Maros (“Dr Maros”), following her death on 1 July 2024. He contends he is Dr Maros’ executor named in her last valid will made 13 August 1998 and codicil made 20 March 2020 (“the 1998 will and 2020 codicil”). Michael seeks the cremation of Dr Maros’ body and to retain possession of her ashes until his death. It is then his wish that his and Dr Maros’ ashes be mixed and scattered together, half in the ocean and half in the Wirrabara Forest, where Dr Maros grew up. 2 Ammun Luca (“Ammun”), the son of Michael and Dr Maros, contends he and his wife Lisa Greig (“Lisa”) are Dr Maros’ lawful executors under a will signed by Dr Maros on 10 October 2023 (“the 2023 will”). Ammun objects to cremation and wants Dr Maros’ body to be interred in a natural burial ground without the body having been prepared with chemical fluids. Ammun asserts the possibility of a private burial on his “beautiful rural property which boasts 30 years of exotic trees, a waterfall and native bush” has been thwarted by his sister, Alexandra Eckert (“Alexandra”), and Michael. Ammun has indicated that he now seeks a natural burial to occur in a cemetery owned by a local council, the location of which he is “loath to give out … because of the constant vexatious influence on individuals and authorities” by Alexandra, her husband Chris Eckert, and their solicitor. 3 Ammun has “substantial concerns” about the suddenness of Dr Maros’ death. He asserts Dr Maros rapidly demised after being removed from his care and within a few months of going into Michael and Alexandra’s care, passed away. He further asserts the manner of her death is currently unexplained, ought to be explained and never will be explained if a cremation proceeds. To this end, it was submitted by Ammun’s counsel that “were Dr Maros to be interred in a natural burial or any sort of burial for that matter, it doesn’t preclude cremation when this matter is fully litigated”. I then pointed out to counsel that such a solution would require an application to the Attorney-General for approval to open an interment site.1 4 Dr Maros, who was born on 17 September 1933, was a retired general practitioner with a special interest in myalgic encephalomyelitis, commonly known as chronic fatigue syndrome. 5 Dr Maros died at Calvary Hospital following an operative procedure on 1 July 2024 aged 90. She is survived by her husband, Michael to whom she was married for 68 years, and her children, Alexandra and Ammun. 1 T77.21-78.5. -- 3 of 24 -- [2024] SASC 98 Bampton J 2 6 Prior to her admission to hospital, Dr Maros had been living with Michael, who is aged 96, in residential aged care. 7 On 4 July 2024, a delegate of the State Coroner certified that Dr Maros’ body was not further required for the purposes of an inquest and authorised the disposal of her remains pursuant to s 32 of the Coroners Act 2003 (SA) (“the Coroners Act”). I infer that as Dr Maros died in hospital following an operation, her death was reported to the State Coroner as a reportable death as defined under the Coroners Act. 8 Dr Maros’ body was released to Ivan Butler Family Funeral Directors. At my request, Ivan Butler Family Funeral Directors provided a copy of the authority to dispose of human remains issued by the Coroner dated 4 July 2024, the application for a cremation permit pursuant to s 10 of the Burial and Cremation Act 2013 (SA) (“the Act”), and a copy of the cremation permit issued pursuant to s 10 of the Act by the Registrar of Births, Deaths and Marriages dated 9 July 2024. 9 Dr Maros’ funeral was held on 15 July 2024. A cremation was scheduled to take place the following day on 16 July 2024 but did not proceed due to Ammun contacting Ivan Butler Family Funeral Directors, asserting that he and Lisa are the executors of the 2023 will and that they objected to the cremation. 10 By letter dated 15 July 2024, Mr Geoff Lewis, the general manager of Ivan Butler Family Funeral Directors, advised Michael and Alexandra’s solicitors that, given Ammun’s wish for Dr Maros to be buried in a natural burial ground, her body could not be embalmed as natural burial precludes preparation of human remains with chemical preservatives. Mr Lewis indicated that his firm would continue to monitor the condition of the body and would need to place it in a hermetically sealed bag. This is not to help preserve the bodily remains, but rather to prevent the spread of bacteria or mould spores to other bodies in the mortuary. Mr Lewis advised in the letter that, should storage of the body go beyond four weeks, it would be highly recommended that embalming take place. However, if advanced decomposition had occurred, embalming would be difficult. 11 Ammun’s solicitor, Adam Richards, wrote to Ivan Butler Family Funeral Directors on 18 July 2024 advising he acts for the executors of Dr Maros’ estate pursuant to the 2023 will. Mr Richards asserted in the letter that the 2023 will was drafted and validly witnessed by the solicitor Michael Rehberg. Mr Richards’ letter also attached a report from Dr Maureen Busuttil, confirming Dr Maros’ “capacity on 4 July 2023”, and a statement from Dr Antonia Turnbull “demonstrating [Dr Maros’] capacity” at the time she saw Dr Maros on 3 October 2023. Mr Richards demanded Ivan Butler Family Funeral Directors immediately handover Dr Maros’ body to Ammun as her lawful and valid executor. Mr Richards said that Ammun wanted Dr Maros’ body to remain untreated by embalming fluids and “her earthly remains to be placed in the hands of D Griffiths of Down to Earth Funerals”. Mr Richards concluded the letter by asserting that if there was any further delay, he would take immediate legal action against -- 4 of 24 -- [2024] SASC 98 Bampton J 3 Mr Lewis and Ivan Butler Family Funeral Directors, would immediately initiate proceedings in the Supreme Court for recovery of Dr Maros’ remains, and would hold Mr Lewis and Ivan Butler Family Funeral Directors liable for legal costs. Mr Richards asserted that as Mr Lewis had sighted the original 2023 will, it was “potentially scandalous” for Ivan Butler Family Funeral Directors to continue to hold Dr Maros’ remains. He then threatened that if Ivan Butler Family Funeral Directors did not promptly do the right thing, apart from legal action, his clients had instructed him to foreshadow involvement of the media. Natural burial 12 A natural burial of human remains is defined by s 3 of the Act as meaning: natural burial of human remains means burial in the ground— (a) without preparation of the remains using chemical preservatives; and (b) by containment of the remains only in a shroud or biodegradable coffin; The Act also describes a natural burial ground as meaning “a place at which human remains are interred by natural burial but does not include a place of a prescribed kind”. Michael and Alexandra’s application 13 By originating application (“the application”), Michael and Alexandra seek orders that they be allowed to proceed with cremating Dr Maros’ body and that Michael be permitted to retain her ashes. Further, Michael seeks an order that he be permitted to lodge an affidavit in accordance with rule 254.4 of the Uniform Civil Rules 2020 (SA) seeking probate in solemn form of the 1998 will and 2020 codicil. The order sought regarding the seeking of probate in solemn form is not an order I can grant on the hearing of this application. 14 Ammun is the first respondent and Lisa is the second named respondent to the application. Ivan Butler Family Funeral Directors, the third named respondent, has indicated it does not wish to participate in the application. 15 Ammun seeks a declaration that “as his mother’s executor under her most recent will, he is the person entitled to make decisions regarding her remains”. 16 Having regard to the matters raised by Mr Lewis in his letter dated 15 July 2024, the hearing and determination of this application is urgent. 17 On 22 July 2024, an Auxiliary Judge ordered that Ivan Butler Family Funeral Directors be restrained from releasing the body of Dr Maros to Down to Earth Funerals or any other person or entity and that it continue to hold the body in its mortuary until further order. -- 5 of 24 -- [2024] SASC 98 Bampton J 4 18 Ivan Butler Family Funeral Directors notified the Birth, Death and Marriages Registry of the application and on or about 22 July 2024 the cremation permit was cancelled. Is Ammun’s objection to cremation the end of the matter? 19 Ammun argued that as Dr Maros’ personal representative and her son, his objection to cremation of her bodily remains is the end of the matter pursuant to s 9(3) of the Act. The Burial and Cremation Act 2013 (SA) 20 Section 9(3) provides: (3) A person must not dispose of bodily remains by cremation or cause, suffer or permit bodily remains to be disposed of by cremation, if the person knows or is aware that a personal representative or a parent or child of the deceased objects to this method of disposal (unless the deceased directed, by a will or some other attested instrument, that his or her remains be disposed of by cremation). Maximum penalty: $10 000. 21 Part 2 of the Act concerns the disposal of human remains. Division 1 of Part 2 concerns disposal by burial or cremation. Sections 7, 8, and 9 in Division 1 are offences in relation to disposal of human remains. Section 7 creates an offence to dispose of bodily remains except by burial or cremation. Section 8 creates an offence to dispose of bodily remains except in a cemetery or natural burial ground. Section 9 creates offences relating to cremation. 22 Section 10 in Division 1 of Part 2 prescribes the procedure for the application for, and issuing of, cremation permits by the Registrar of Births, Deaths and Marriages. Subsections 10(7) and 10(8) provide: (7) The Registrar must not issue a cremation permit if— (a) the Registrar knows or is aware that a personal representative or a parent or child of the deceased objects to the disposal of the remains by cremation (unless the deceased directed, by a will or some other attested instrument, that his or her remains be disposed of by cremation); or (b) an order prohibiting disposal by cremation has been made under section 11; or (c) the death is a reportable death under the Coroners Act 2003. (8) If the Registrar becomes aware of a dispute as to who may be entitled at law to possession of the body of a deceased person for the purposes of its disposal, the Registrar may refrain from issuing a cremation permit in respect of the body until the dispute is resolved. -- 6 of 24 -- [2024] SASC 98 Bampton J 5 23 Section 11 in Division 1 prescribes the power of the Attorney-General, the State Coroner, or a magistrate to, by order, prohibit disposal by cremation. No such order has been made regarding Dr Maros’ body. 24 Whilst the Act does not prescribe a procedure for resolving disputes regarding disposal of remains, including a dispute arising from an objection made to cremation by a personal representative, parent, or child of the deceased, s 10(8) clearly contemplates disputes concerning “who may be entitled at law to possession of the body of a deceased person for the purposes of its disposal”. 25 Similarly, it is to be noted s 32(2) of the Coroners Act provides that: If the State Coroner becomes aware of a dispute as to who may be entitled at law to possession of the body of a dead person for the purposes of its disposal, the State Coroner may refrain from issuing an authorisation for the disposal of human remains in respect of the body until the dispute is resolved. 26 While both the Act and the Coroners Act plainly contemplate disputes and provide for the non-issuance of cremation permits and authorisations for the disposal of human remains until such a dispute is resolved, neither Act makes clear what is to be done when a dispute cannot be resolved. 27 But the Act also provides by s 5 that its provisions are in addition to, and do not derogate from, the provisions of, relevantly, any other Act or law. 28 As the author of Succession Law in South Australia states:2 Rights of possession to a dead body are justiciable matters and a court has the power by way of inherent jurisdiction to make an order with an injunction to restrain a person from proceeding with burial or cremation, thus allowing another to perform it: Calma v Sesar (1992) 106 FLR 446 at 451 per Martin J. 29 In Marschall v Elson (“Marschall”),3 where the applicants objected to the cremation of their son’s body, the Court of Appeal noted that s 9(3) of the Act had been unaddressed and stated:4 Neither the primary Judge nor this Court heard submissions about the effect of s 9(3) in this case, or about the Burial and Cremation Act 2013 (SA) more generally, including whether it may be overcome by an order of the Court (or by anyone else, see for example, s 11 by which the Attorney-General, the State Coroner or a magistrate may by order prohibit disposal by cremation). 2 David M Haines, Succession Law in South Australia (LexisNexis Butterworths, 2003) at 291, [22.10]. 3 [2023] SASCA 1. 4 [2023] SASCA 1 at [40]. -- 7 of 24 -- [2024] SASC 98 Bampton J 6 30 In Marschall v Elson (No 2),5 the Court of Appeal, in dismissing an appeal against an order permitting cremation, said, “The effect of these orders is that there is no longer any impediment to cremation”.6 31 Whilst the Court of Appeal in Marschall v Elson (No 2) did not address s 9(3) of the Act, it can be inferred it determined an order of the Court permitting cremation resolves any dispute such that an objection within the meaning of s 9(3) cannot be maintained. 32 Accordingly, s 9(3) of the Act is not the end of the matter. It is for this Court to determine the application in its inherent jurisdiction. The Maros family Michael’s affidavit 33 In his affidavit affirmed on 17 July 2024, Michael deposes he and Dr Maros loved each other very much and only wanted to be with each other ever since they first met. They wanted to remain together in death as well, and they wanted to be cremated. He states that they wanted their ashes to be mixed so they can be together forever. 34 Michael deposes that he and Dr Maros each made a will on 13 August 1998 and a codicil on 20 March 2020. He states he is the executor of Dr Maros’ will. He explains that Dr Maros suffered dementia in the last years of her life. Michael deposes that she declined in late 2022 and was hospitalised and formally diagnosed with dementia in January 2023, from at least which time Dr Maros did not have capacity to make her own decisions. Michael says that he has always had a problematic relationship with Ammun, who is an artist with alternative views. He explains that while Dr Maros viewed Ammun as being “a bit nutty”, she loved him, and they remained very close. Michael deposes that when Dr Maros lost capacity, Ammun inserted himself into his and Dr Maros’ lives, even moving into their house against their wishes, taking over Dr Maros’ care and arranging for his own doctors to treat her, which Michael says led to a rapid worsening of her condition. 35 Michael says that Alexandra, who held the power of substitute decision-maker under the advance care directive Dr Maros made in 2020 (“the 2020 ACD”), tried to intervene in Ammun’s management of their parents, which resulted in Ammun forcing him and Dr Maros to meet with a lawyer in May 2023. He asserts that Ammun was present for the meeting and forced them to sign a new enduring power of attorney (“the 2023 EPA”) and advance care directive (“the 2023 ACD”), even though neither Michael nor Dr Maros understood what they were signing. Michael asserts that Ammun subsequently forced him and Dr Maros to make new wills in October 2023. He states the lawyer came to their home to act as a witness and that Ammun was present throughout the meetings. Michael 5 [2023] SASCA 3. 6 [2023] SASCA 3 at [27]. -- 8 of 24 -- [2024] SASC 98 Bampton J 7 does not remember the documents being explained; he and Dr Maros were just told to sign them. Michael says he was never given a copy of the will and that he has instructed his lawyer “to debunk this fake will as part of these court proceedings”. 36 Michael explains that he and Dr Maros moved into residential aged care in March 2024 because he could no longer physically look after her. He says after they moved, they discussed their wish to be cremated. Michael says he raised this topic because his physical health was worse than Dr Maros’ and he believed that he would die before her. Michael deposes that although Dr Maros did not have capacity at the time to make decisions, her love for him and desire to always be with him were constant. Michael says he believes that she was able to understand the concept of them remaining together forever. 37 At Ammun’s request, Michael attended the hearing of the application for cross-examination. Michael did not waver with respect to his wishes and those of Dr Maros as affirmed in his affidavit. Michael agreed he was aware Ammun had an idea to establish a natural burial ground on his property. Michael said he told Ammun it was a good idea because Ammun would earn money. Michael denied Dr Maros wanted to be buried on Ammun’s property or at all and had said to him she wanted to be cremated and for her ashes to be mixed with his. I accept Michael’s evidence. Alexandra’s affidavit 38 Alexandra deposes in her affidavit affirmed 19 July 2024 filed in support of the application that she and her parents talked freely about death and cremation and, in 1995, when Alexandra’s grandmother was cremated, Dr Maros said that she also wished to be cremated and for her ashes to be mixed with Michael’s. Alexandra deposes that at no time did her mother ask for a burial. 39 Alexandra explains that her family has always had a difficult relationship with Ammun, that her parents argued with him a lot, and that since she and he are very different people, they have had very little to do with each other for most of their adult lives. She deposes that Ammun is an artist who lived with Dr Maros and Michael into adulthood and changed his name from Stefan Maros to Ammun Luca, which upset their father. Alexandra deposes that Dr Maros and Ammun remained close. 40 Alexandra states that in late 2022, Dr Maros’ health began to deteriorate, as she had dementia and suffered rapid cognitive and memory decline. She explains that Ammun moved in with Michael and Dr Maros and, “took over control of their lives”. Ammun arranged for a new general practitioner, Dr Antonia Turnbull, to attend Dr Maros and change her treatment plan. Ammun apparently threatened Dr Maros’ usual general practitioner, Dr Rebecca Mott-Lake, with legal action, causing Dr Mott-Lake’s practice to say it could not continue to treat Dr Maros. 41 Alexandra assets Ammun and his choice of doctors favoured unconventional treatment for Dr Maros involving extremely low carbohydrate intake with vitamin -- 9 of 24 -- [2024] SASC 98 Bampton J 8 supplements and medical cannabis. She says that as a result of this regime, Dr Maros suffered extreme weight loss and other side effects. Alexandra also asserts that Ammun wanted to ensure that his mother never received a COVID-19 vaccine. Alexandra deposed that upon her arrival in Adelaide in December 2022, she found her mother was in very poor health and exhibiting strange behaviours. Alexandra arranged for her admission to hospital as detailed later in these reasons. 42 Alexandra asserts that throughout February 2023, following her discharge from hospital, Ammun consistently attempted to subvert his mother’s medical care and, in May 2023, attempted to place her back on the alternative treatment regimes. She asserts Ammun replaced his mother’s normal medical care with carers who were his friends and two general practitioners, namely Dr Turnbull and Dr Busuttil, whom Alexandra believed he had met through “anti-vaxxer” and “Freedom” circles, both of whom favoured the radical low carbohydrate treatment for Dr Maros’ dementia. Alexandra says that, pursuant to the 2020 ACD, she wrote to Dr Turnbull and asked her to stop seeing Dr Maros. 43 Thereafter, Alexandra asserts Ammun arranged for Dr Maros to see a new lawyer, Mr Rehberg, on 17 May 2023, where she signed the 2023 EPA and the 2023 ACD. Alexandra asserts that her mother did not have capacity to sign legal documents in May 2023 nor in October 2023, at which time Ammun arranged for his mother to sign the 2023 will with Mr Rehberg. She asserts that despite multiple demands of Mr Rehberg, he did not give her father or her a copy of the 2023 will. 44 Alexandra says that when the situation regarding Dr Maros, her care, and Ammun’s involvement became untenable, she made application to the South Australian Civil and Administrative Tribunal (“the Tribunal”) seeking guardianship and administration orders with respect to Dr Maros. Ammun’s affidavit 45 In his affidavit sworn on 26 July 2024, Ammun alleges that Alexandra has been guilty of unconscionable conduct by abusing her power under an enduring power of attorney in relation to their father, Michael. He alleges that she has knowingly exploited Michael’s mental weaknesses arising from his age and emotional instability and poisoned Michael’s mind against Ammun. 46 Ammun alleges that Alexandra had previously, in late 2022 and early 2023, used her knowledge as a nurse to exploit Dr Maros’ temporary disability when she was hospitalised with a urinary tract infection, which he asserts led to a premature and flawed dementia diagnosis. 47 He alleges that in September 2023, prior to the Tribunal hearing, Alexandra threw him out of the house on a concocted charge that was later withdrawn, packed up Dr Maros’ prescribed medications, turned trained carers away and put another doctor unknown to his mother in charge, thereby dismantling the aged care scheme he, Lisa, and Michael had put in place. Ammun alleges that under interim orders made by the Tribunal (discussed below), Dr Maros’ usual doctors, Dr Turnbull and -- 10 of 24 -- [2024] SASC 98 Bampton J 9 Dr Busuttil, were denied contact with her. He alleges that Alexandra’s first attempt to secure guardianship was unsuccessful and the Tribunal awarded guardianship to the Public Advocate jointly with Michael. Ammun says he has been challenging the need for Dr Maros to be placed under any kind of guardianship, including by appealing both to the Supreme Court and the Tribunal, and that the matter is still ongoing. 48 Ammun asserts the Tribunal made final orders on 8 March 2024 to the effect that Dr Maros had capacity to sign the 2023 ACD. He says that Alexandra’s actions led to Dr Maros’ declining health and general detriment. 49 Ammun makes allegations of disposal of Michael and Dr Maros’ property by Alexandra. He asserts that Michael has become irrational about expenditure, preferring cheap medications and less expensive hearing aids, and, for the first time ever, has begun to discuss cremation as the cheapest available option. Ammun deposes that in early 2023, his father warmly endorsed the idea of a natural burial. However, when Alexandra found out about the concept, she attempted to vilify him to their father for entertaining such a proposal. Ammun also asserts that Michael has alleged he was bullied and coerced into signing documents by Alexandra. 50 Ammun deposes that Dr Maros made the 2023 will to remove Alexandra as an executor and replace her with Lisa. 51 He asserts that the only time that Dr Maros did not perform well in psychological tests was when she was sick, under duress, and outside her home environment; all situations that Alexandra had facilitated and/or exploited. 52 He says that whilst Dr Maros was under the joint guardianship of Michael and the Public Advocate, she was denied her medications of choice, placed into a nursing home, and isolated from her close friends, him and Lisa. 53 Ammun says the Public Advocate placed restrictions on his access to Dr Maros, making a requirement that his conversations were monitored by nursing staff. He says: The Site Operations Manager was told to censor our speech when it came to subjects of medications, family conflict [and] legal issues and the family home. 54 Ammun maintains at no time did Dr Maros say she wished to be cremated. Lisa’s affidavits 55 In her affidavit affirmed on 26 July 2024, Lisa asserts that Michael began to get increasingly angry with Dr Maros for not following doctors’ orders after her fall in late 2022. She says that she and Ammun were desperate to assist more, but Michael was resistant. -- 11 of 24 -- [2024] SASC 98 Bampton J 10 56 A further affidavit of Lisa sworn on the same date exhibits a statutory declaration of Dr Turnbull dated 25 July 2024, an affidavit of Dr Busuttil dated 25 July 2024, a statutory declaration of Dr Marie-Madeleine Wight-Huber dated 24 July 2024, and a statutory declaration of Dr Kathy Wallace dated 25 July 2024. Lisa says that she has collected these affidavits for use in this case. 57 Attached to Dr Turnbull’s statutory declaration is a letter written by her concerning Dr Maros dated 25 July 2024. In that letter, Dr Turnbull says that in December 2022 she was first asked by Ammun to visit his mother as he had noticed quite a sudden drop in her cognitive state over the previous month. Dr Turnbull meet with the family for over an hour and noted that Dr Maros was on many medications that could be affecting her cognition. While Dr Turnbull says that Dr Maros appeared vague, she acknowledged that she had no point of comparison because she had not met her before. Dr Turnbull says she continued to see Dr Maros throughout 2023 and that the treatment plan devised by her and Ammun led to improvement in Dr Maros’ cognitive abilities. Dr Turnbull says that during her last face-to-face appointment with Dr Maros on 3 October 2023, which involved consultation with Dr Maros, Ammun and Lisa for 55 minutes, she had no reason to assess Dr Maros’ mental state because she had no problems discussing the details of her diet or supplements. Dr Turnbull said Dr Maros did have short-term memory loss regarding certain details which were filled in by Ammun, who was caring for her almost full time. Dr Turnbull asserts that on 3 October 2023, Dr Maros was “very much involved in the details of her medical treatment and was competent to make decisions about her health and future care and details of her life”. 58 In her statutory declaration, Dr Busuttil asserts that Dr Maros “had capacity when she signed [the 2023 ACD]” and that she “assessed Dr Maros in her [own] home and with her express permission” on 28 June 2023. Dr Busuttil formed the opinion that Dr Maros was capable of making decisions regarding her medical care at that time, stating: It is my belief that the ACD was considered to be valid in May 2023 therefore her wishes for medical treatment at the time should have been respected and adhered to. I.e, The B12 injections and the THC/CBD for her back pain. It is also my belief that [Dr Maros] may have been suffering a temporary loss of capacity in February 2024, when a complex neuropsychological assessment was carried out by Dr Field, a clinical psychologist. Dr Busuttil concludes her statement by saying: It is therefore my professional opinion that [Dr Maros] retained capacity to make decisions about her medical treatment and lifestyle choices from June 2023 until the time of her untimely death in July 2024. 59 In her statutory declaration, Dr Wight-Huber states that in her opinion Dr Maros had full capacity to express her opinion and wishes clearly and adequately. Dr Wight-Huber states that: -- 12 of 24 -- [2024] SASC 98 Bampton J 11 What then happened was nothing short of a severe and criminal elder abuse ending in [Dr Maros’] sudden and somewhat mysterious death. The cause of death is still unknown to her son. 60 In her statement, Dr Wallace attaches a consultation record dated 23 June 2023. It records that Ammun and Lisa were present for the consultation and that Dr Maros was seeking a second opinion regarding: … her health parameters In particular her mental status [Patient] did not want a mini mental state exam [Agreed] to [have] an informal review Dr Wallace notes that: May benefit by another geriatrician review now that [patient] is well and out of hospital Was in hospital some months ago for UTI at Hampstead and was discharged with a diagnosis of severe dementia (mixed type) and her husband had been advised that she would never leave the hospital I found [patient] to be normal and appropriate for her age group, she was compos mentis and adequately interactive Her recall required basic prompting but she engaged well and answered my questions in a satisfactory manner. Dr Maros’ admission to hospital 61 Dr Maros was admitted to the Royal Adelaide Hospital on 30 December 2022. Dr Maros was transferred to Hampstead Rehabilitation Centre and was ultimately discharged on 10 February 2023. During that admission, on 16 January 2023, Artemis Synn, a clinical neuropsychologist, assessed Dr Maros, diagnosed Dr Maros with a mixed dementia and expressed the view that Dr Maros lacked capacity. In a letter dated 19 January 2023, Dr Jessica Huang, a consultant geriatrician at the Royal Adelaide Hospital, confirmed, following her assessment on 17 January 2023, Dr Maros had vascular and Alzheimer mixed-type dementia, that she lacked capacity to make decisions regarding her health and lifestyle and that her existing advance care directive and power of attorney should be activated.7 Dr Maros signs the 2023 ACD 62 On 17 May 2023, Dr Maros signed the 2023 ACD prepared and witnessed by the solicitor Mr Rehberg, then of Old Port Chambers. The 2023 ACD appoints Mr Maros as substitute decision-maker. However, if Mr Maros is unwilling or 7 At the time Dr Huang wrote the letter 19 January 2023, the existing advance care directive and power of attorney were documents signed by Dr Maros at the time she signed the 2020 codicil. -- 13 of 24 -- [2024] SASC 98 Bampton J 12 unable to act, the ACD states that Ammun and Lisa are jointly appointed. Part 4 of the 2023 ACD provides: If I have a terminal illness then: 1.1 I do not wish to be kept alive on life support machines or to undergo any unnecessary operations; 1.2 I only want those medical treatments that make me comfortable, relieve pain and preserve my dignity and I do not wish to be force fed solid food. 2. If I have a diagnosis of dementia I wish to be treated with the same respect as any other patient. 3. I refuse any covid vaccination or any MRNA gene therapy vaccination or any blood transfusion from such vaccinated sourced blood unless approved by my substitute [decision-makers]. Alexandra’s application to the Tribunal 63 As can be gleaned from these reasons, Alexandra and Ammun have been in conflict regarding a number of issues including, from late 2022, Dr Maros’ care and cognitive capacity. Upon becoming aware of the 2023 ACD, Alexandra made applications to the Tribunal seeking guardianship and administration orders with respect to Dr Maros, and that the 2023 ACD be declared invalid, or alternatively, if valid, that it be revoked. Ammun brought applications dated 23 January 2024, 14 February 2024, and 27 February 2024 seeking to dismiss the Tribunal proceedings. Dr Huang’s opinion 64 In a report addressed to the Tribunal dated 8 August 2023, Dr Huang stated that Dr Maros was admitted to the Royal Adelaide Hospital on 30 December 2022 with a diagnosis of dehydration and associated acute kidney injury. She was also treated for a urinary tract infection. She was transferred to the geriatric restorative care unit at Hampstead Rehabilitation Centre on 4 January 2023 for ongoing cognitive workup and reconditioning, given her functional decline and poor mobility. She was seen by Dr Toby Commerford, a geriatrician, who considered she likely had an undiagnosed dementia requiring further workup. Dr Maros underwent an MRI brain scan, the results of which suggested a mixed neurodegenerative vascular and Alzheimer dementia pattern. Dr Huang said that collateral information was gained from Michael, Alexandra, and Ammun by the medical team, who all confirmed there had been cognitive decline in the months preceding her admission, although there were differing opinions as to the cause of the decline. 65 Information was also sought from Dr Maros’ general practitioner, Dr Mott-Lake, who reported that she had supported Dr Maros and Michael by visiting them at home. Dr Mott-Lake stated Dr Maros had a history of cognitive decline for at least one year, which had worsened in the last six months. Dr Mott-Lake also reported that there had been attempts to undertake cognitive assessments and geriatric reviews in the community, but that Dr Maros was resistant. Dr Mott-Lake considered that prior to her admission to hospital, Dr Maros did not have capacity. -- 14 of 24 -- [2024] SASC 98 Bampton J 13 66 Dr Huang said cognitive testing undertaken during Dr Maros’ admission revealed an MMSE score of 20/30. Neuropsychology was attempted but unable to be completed due to the distress caused to Dr Maros. 67 Dr Huang formed the opinion that, based on her assessments, collateral history, occupational therapy assessments, limited neuropsychology, and MRI findings, Dr Maros had a mixed Alzheimer and vascular dementia. She had limited insight into her deficits and was noted to be heavily affected by outside influence (such as being upset by certain visitors who she did not recognise). As a result of her assessment, Dr Huang considered that Dr Maros did not have capacity to make decisions regarding medical, lifestyle, accommodation or financial matters, nor to sign legal paperwork. 68 Dr Huang recorded in a Tribunal “Medical or Psychological Report Form” regarding mental capacity dated 10 August 2023: [Dr Maros] expressed on multiple occasions to myself during the period of 14th January to discharge on the 10th February, that she would want her husband and daughter to make [decisions] for her if she was unable to make decisions for herself. Dr Maros makes the 2023 will 69 The 2023 will was made by Dr Maros on 10 October 2023, having been drafted and witnessed by Mr Rehberg, who was at that time a sole practitioner. The only substantive difference between the 1998 will and 2023 will is the identity of the executors. The 2023 will appoints Ammun and Lisa as executors, whereas Michael is the executor under the 1998 will. 70 Michael and Alexandra maintain the 2023 will is not valid as Dr Maros lacked testamentary capacity and no affidavit of due execution has been prepared. The intervention order 71 On or about 14 October 2023, South Australia police charged Ammun for assaulting Michael on several occasions. The alleged assaults arose in the context of disagreements between Michael and Ammun regarding Dr Maros’ care. The charges were withdrawn prior to trial. An intervention order against Ammun was in place from late 2023 to early 2024. The Tribunal hearing 72 On 6 November 2023, the Tribunal convened to consider Alexandra’s and Ammun’s applications. Interim orders were made on 6 November 2023 appointing the Public Advocate as limited guardian of Dr Maros jointly with Michael. The Tribunal adjourned the hearing so that Dr Maros’ capacity could be examined by a neuropsychologist, including her capacity to make the 2023 ACD on 17 May 2023. The Tribunal also determined it would provide Dr Maros the opportunity to attend the adjourned hearing and provide her views regarding the applications. -- 15 of 24 -- [2024] SASC 98 Bampton J 14 Mr Jackson’s meeting with Dr Maros 73 On 19 February 2024, Michael and Alexandra’s solicitor, Mr Kym Jackson, met with Dr Maros during her admission to Calvary Hospital while she was recovering from COVID-19. The purpose of the attendance was to ascertain from Dr Maros who she wanted to care for her affairs under an advance care directive or power of attorney. Mr Jackson deposes it only took a few minutes for him to be satisfied Dr Maros lacked capacity. He explained she spoke and presented well but had a very limited short-term memory, would lose her train of thought every few minutes, then become confused and upset that she could not remember what was going on in that moment or overall, in her life. Mr Jackson formed the view she appeared to lack insight into her condition. Dr Maros told Mr Jackson she had until recently been a practising general practitioner but had been told her mind was no longer her own. She also tried to defer any question she was unsure about to Michael. 74 Having met with Dr Maros, Mr Jackson was confident she loved Michael deeply and her primary wish was for the remainder of her life to be with him. He explained that she described being in hospital only because Michael was unwell at that time (Michael was also in hospital recovering from COVID-19) but she was happy because she wanted to be where he was, wherever that might be. Dr Field’s report 75 On 23 February 2024, the clinical neuropsychologist, Dr Colin Field, provided a report following his assessment of Dr Maros on 14 February 2024. Dr Field expressed strong support for the view that Dr Maros lacked capacity as at 17 May 2023, when the 2023 ACD was signed. In particular, he agreed with the opinion expressed by Dr Huang that Dr Maros lacked capacity since at least January 2023. He stated that he considered it “unlikely in the extreme” that Dr Maros would have regained capacity since that time. 76 Dr Field noted the allegations of financial mismanagement and abuse, as well as conflicting medical evidence regarding Dr Maros’ ability to manage matters of health, safety, and welfare, and her financial affairs. He also noted the conflicting medical evidence about her capacity to execute documents on 17 May 2023. 77 Dr Field queried whether assessments performed by Dr Turnbull in December 2022 and May 2023 and by Dr Busuttil in July 2023 involved any cognitive review. Dr Field said he agreed with Dr Huang’s opinion that, in January 2023, Dr Maros presented as having had significant dementia for one to two years. 78 Dr Field referred to Dr Huang’s strong recommendations that the 2020 ACD and power of attorney made in 2020 (“the 2020 EPA”) be activated in January 2023. Dr Field expressed the opinion that it appeared unusual that this recommendation did not appear to have been acted upon, noting that opposing opinion had been obtained and that, in May 2023, Dr Maros signed the 2023 EPA -- 16 of 24 -- [2024] SASC 98 Bampton J 15 and the 2023 ACD. Dr Field queried whether the opposing opinions of Dr Turnbull and Dr Busuttil were conveyed on the basis of clinical interview, possibly with Ammun present, but without any attempt to buttress these opinions with any form of cognitive review. Dr Field stated that it is clear that Dr Maros had been extremely high-functioning in her time but was, in February 2024, presenting with profound decrements of all cognitive domains including those of orientation, learning, recall of newly presented information, organisational and problem-solving function, construction function, and verbal fluency function. He considered she also appeared profoundly lacking insight into these deficits, maintaining throughout the interview that she was fine, denying that she had been brought from the Calvary Hospital for the purposes of the interview, denying that Michael was also an inpatient at Calvary Hospital, and denying that both of them had recently been diagnosed with active COVID-19. Dr Field noted that she was quite irritable and unhappy with the circumstances of the assessment. Dr Field indicated he would strongly agree with Dr Huang’s previous opinion regarding the presence of an established mixed-type dementia. He agreed that she had lost capacity. Dr Field said: While it is in [principle] possible that a person who currently does not have decision-making capacity may have had capacity at an earlier time in the presence of a degenerative brain disease such as dementia, and while of course it is impossible to state with certainty that she did not have capacity at the time of signing the Advance Care Directives in May 2023, I consider it highly likely that she did not have capacity at that stage, especially of course noting that even prior to this, Dr Huang had given clear indication that she considered that capacity had been decisively lost well prior to this date. The Tribunal members’ attendance on Dr Maros 79 At the suggestion of the Public Advocate the Tribunal members visited Dr Maros in her respite accommodation on 29 February 2024 to explain the applications that had been made. The Tribunal recorded in its reasons dated 8 March 2024 that upon visiting Dr Maros: It was apparent that Dr Maros’ clear and consistent wish was for her husband to make decisions regarding all her affairs. She said she wanted to live wherever her husband lives. She said she could not live at home. She said she just wanted the conflict to stop and was very upset they could not get along. She said she does not see eye to eye with her son’s views on medical treatment. She said she loves all her family and wants them to visit her. The Tribunal’s observation of entrenched family conflict and conflicting medical evidence 80 In addition to Dr Huang’s report and Dr Field’s report, the Tribunal heard evidence from Dr Turnbull and Dr Busuttil regarding their treatment of Dr Maros and their opinions to the effect Dr Maros had not lost capacity. 81 The Tribunal noted there was conflicting medical evidence regarding Dr Maros’ ability to manage her health, safety and welfare and to manage her financial and legal affairs and there was conflicting medical evidence about her capacity to execute the 2023 EPA and the 2023 ACD. Further, the Tribunal noted -- 17 of 24 -- [2024] SASC 98 Bampton J 16 there was entrenched family conflict between Alexandra and Michael on one hand and Ammun on the other about whether Dr Maros had mental incapacity, about decisions concerning her medical treatment, accommodation, services and access. It was noted there also were allegations of mismanagement and abuse. The Tribunal’s orders 82 The Tribunal dismissed all three applications brought by Ammun. The application brought by Alexandra seeking a declaration that the 2023 ACD is invalid 83 The Tribunal stated that while it had significant concerns regarding the creation of the 2023 EPA and 2023 ACD, given the allegations of abuse and coercion, on balance there was insufficient evidence to conclude that Dr Maros lacked competency to sign to documents. The Tribunal determined, despite the medical evidence of Dr Huang that Dr Maros lacked capacity and suffered a mixed-type of dementia, it was persuaded by Mr Rehberg’s evidence and the procedures he adopted in determining Dr Maros was competent to make the 2023 ACD. The Tribunal found Dr Maros was competent on 17 May 2023 to make the 2023 ACD and it was a valid document. The application brought by Alexandra to revoke the appointment of Ammun and Lisa in the 2023 ACD 84 The Tribunal noted the 2023 ACD appointed Michael as sole substitute decision-maker, with Ammun and Lisa to be appointed jointly if Michael dies or is unable or unwilling to act. 85 The Tribunal recorded that Michael had reported that Ammun made decisions for Dr Maros as substitute decision-maker and had coerced Michael. The Tribunal stated Dr Maros’ directive clearly provided that the substitute decision-maker was Michael while he was able and willing to act in this capacity. The Tribunal noted Michael wished to continue to be Dr Maros’ substitute decision-maker, which was also Dr Maros’ clear wish. 86 The Tribunal found all the substitute decision-makers were in breach of s 10(g) of the Advance Care Directives Act 2013 (SA) (“the ACD Act”) by permitting this arrangement, that the decisions being made by the substitute decision-makers were contrary to the ACD Act and that they were consequently not fit to continue in their roles. Accordingly, the Tribunal revoked the appointments of Michael, Ammun, and Lisa as substitute decision-makers under the 2023 ACD. The application made by Alexandra under s 29 of the Guardianship and Administration Act 1993 (SA) 87 The Tribunal found Dr Maros had a mental incapacity, that a full guardianship order should be made and that her consistent and clear wish was for Michael to make decisions for her with respect to all her affairs. The Tribunal -- 18 of 24 -- [2024] SASC 98 Bampton J 17 appointed the Public Advocate jointly with Michael as full guardians of Dr Maros to ensure that all guardianship decisions were made free of bias and influence, having taken all interested persons’ views into account. 88 The Tribunal also appointed the Public Trustee full administrator of Dr Maros’ estate upon finding there was entrenched conflict between Alexandra, Michael, and Ammun and recommended the Public Trustee consider revoking the 2023 EPA. 89 Dr Maros and Michael moved into permanent aged care in March 2024. Purported appeal by Ammun to Supreme Court 90 On 15 March 2024, Ammun filed a notice of appeal in the Supreme Court seeking that all orders and directions made in Tribunal concerning Dr Maros “be dismissed and nullified ab initio”. 91 On 4 April 2024, the purported appeal was struck out by a judge of this Court, who explained that the Supreme Court Registry was in error accepting Ammun’s appeal, as the appropriate avenue to challenge the Tribunal’s orders was an internal review under s 70 of the South Australian Civil and Administrative Tribunal Act 2013 (SA). 92 Ammun’s application to the Court of Appeal for permission to appeal the striking out of his appeal was struck out on 18 April 2024.8 93 Ammun then instituted an internal review of the Tribunal’s decision to revoke the 2023 ACD. Alexandra also sought a review of the Tribunal’s determination that the 2023 ACD was valid. 94 As at the time of Dr Maros’ death, the Tribunal proceedings had been listed for an internal review. How should the application be determined? 95 The authorities concerning the legal principles applicable to the disposal of bodily remains spans several centuries. Those principles have been settled by the Court of Appeal in Marschall.9 In reviewing past authorities, the Court of Appeal stated the key propositions in burial disputes appear to be:10 1. There is no property in a dead body, and it may not be owned by anyone. Nonetheless in certain circumstances the law may protect the lawful possession of a corpse or body parts.11 8 Luca v Eckert [2024] SASCA 60. 9 [2023] SASCA 1. 10 [2023] SASCA 1 at [59]. 11 Doodeward v Spence (1908) 6 CLR 406, 414 (Griffith CJ with whom Barton J agreed, Higgins J dissenting). -- 19 of 24 -- [2024] SASC 98 Bampton J 18 2. When a person dies possessed of sufficient property, the duty of burying the body falls on his or her personal representative. Where there is a will, that is the executor or executrix named in the will. There is no longer any obligation in a husband to meet the reasonable funeral expenses of his deceased wife.12 3. Where the deceased does not have the means to pay for burial, the occupier of the premises in which the person dies has the duty to cover the body and convey it for burial. That obligation extends to hospitals and medical facilities.13 4. Where there is no executor named, but the deceased leaves an estate, the person entitled to administration is usually the person who is responsible for the burial of the body and for the payment of the funeral expenses. That person may recoup those expenses out of the estate.14 5. Where the deceased dies intestate, but there is no significant estate, or it is unlikely that an application will be made to take out letters of administration, the wishes of the person best placed to obtain an order for administration will not necessarily be accorded significant weight on account of that fact alone.15 6. Rather, in all cases involving intestacy, the proper approach requires a flexible balancing of common law principles and practical considerations, as well as attention to any cultural, spiritual and religious matters that are of importance on the evidence. This extends to taking into account, at the least, the wishes of the deceased and the members of the family of the deceased.16 7. It is not always necessary to resolve all disputes that may emerge on the evidence, and the Court must be mindful that the dignity of the deceased,17 and the conscience of the community,18 require that a declaration as to the mode and place of burial be made promptly, albeit with all proper respect and decency for the interests of those involved.19 (Footnotes in original) Who is entitled to make the decision about the disposal of Dr Maros’ body? 96 As Marschall states, the executor named in a valid will has the right to possession of the deceased’s body for the purpose of its disposal. 97 Dr Maros made the 1998 will appointing Michael executor (or Alexandra and Ammun jointly if Michael had predeceased her). The effect of the 1998 will is to 12 Jones v Dodd (1999) 73 SASR 328, [29] (Perry J, with whom Millhouse and Nyland JJ agreed). Cf Smith v Tamworth City Council (1997) 41 NSWLR 680, 691-692 (Young J). 13 Kate Falconer, “Reconceptualising the Law of the Dead by Expanding the Interests of the Living” (2019) 45(3) Monash University Law Review 757, 761 cites University Hospital Lewisham NHS Trust v Hamuth [2006] EWHC 1609 (Ch); Lakey v Medway NHS Foundation Trust [2009] EWHC 3574 (QB). 14 Smith v Tamworth City Council (1997) 41 NSWLR 680, 691 (Young J). 15 South Australia v Smith (2014) 119 SASR 247, [53] (Nicholson J). 16 South Australia v Smith (2014) 119 SASR 247, [34] (Nicholson J). 17 Burial and Cremation Act 2013 (SA) s 6; Minister for Families and Communities v Brown [2009] SASC 86 at [10]. 18 Calma v Sesar (1992) 106 FLR 446, 452 (Martin J). 19 Calma v Sesar (1992) 106 FLR 466, 452 (Martin J). -- 20 of 24 -- [2024] SASC 98 Bampton J 19 leave her estate to Michael if he survived her, and otherwise equally between Alexandra and Ammun. 98 In 2003, Dr Maros made an enduring power of guardianship drafted by Treloar & Treloar in favour of Michael or, if he was unwilling or unable to act, Alexandra. 99 In 2020, Dr Maros made a codicil to the 1998 will. The effect of the codicil is simply to provide that, if either of Dr Maros’ children were to predecease her, their share of her estate would go to their respective spouse rather than their children. The 1998 will was otherwise unchanged and Mr Maros remained as executor. The codicil was drafted and witnessed by Mr Gaetano Aiello of Treloar & Treloar. There is no dispute regarding the validity of this will.20 100 At the time the codicil was made, Dr Maros also made the 2020 EPA and the 2020 ACD prepared by Treloar & Treloar. Michael was the donee of the 2020 EPA and was the appointed decision-maker pursuant to the 2020 ACD. Alexandra was named as the substitute in both documents if Michael was unwilling or unable to act. 101 There has been no grant of probate in Dr Maros’ estate. On 4 July 2024, Alexandra entered a caveat in the testamentary causes jurisdiction in the estate of Dr Maros to ensure no grant is sealed without notice to her. 102 I do not need, nor is it appropriate for the purposes of this application, to determine whether the 2023 will signed by Dr Maros is valid. However, in the circumstances of the Tribunal’s findings and orders and the conflicting medical evidence, there is significant uncertainty regarding the validity of the 2023 will. It follows there is significant uncertainty as to the identity of the executor. 103 Given that there has been no challenge to the 1998 will, it is most unlikely that Dr Maros died without a valid will. However, there remains uncertainty regarding the identity of Dr Maros’ executor: Ammun and Lisa will be Dr Maros’ executors if the 2023 will is found to be valid, otherwise Michael will be Dr Maros’ executor pursuant to the 1998 will. In these circumstances and noting the need to determine the application urgently, it is necessary to adopt a similar approach as would be taken in burial disputes where the deceased died intestate. As identified in Marschall, that approach requires a flexible balancing of common law principles and practical considerations. This approach must be qualified as it would be incorrect to characterise Dr Maros as having died intestate, and it would be a nonsense to consider the wishes of Michael in his capacity as the person who would be entitled to obtain letters of administration on intestacy. 104 Accordingly, in arriving at a decision, I will consider any evidence of Dr Maros having expressed her wishes as to disposal of her remains. I will also 20 FDN 21 is an affidavit of due execution affirmed on 31 July 2024 by the solicitor Gaetano Anthony Aiello of Treloar & Treloar Barristers and Solicitors. -- 21 of 24 -- [2024] SASC 98 Bampton J 20 consider the wishes of Michael, Alexandra, Ammun, and Lisa, in their respective capacities as Dr Maros’ husband, children, and daughter-in-law. 105 Dr Maros did not express any wish regarding the disposal of her remains in any testamentary document nor did she have a prepaid funeral plan. 106 I have read all the affidavits filed by the parties which, other than Michael’s affidavit which was received into evidence, I received de bene esse. The evidence relied on by Michael and Alexandra regarding Dr Maros’ cognitive capacity, living conditions, wellbeing, and her wishes stands in stark contrast to the evidence relied on by Ammun and Lisa. Michael and Alexandra make allegations amounting to elder abuse, undue influence, and negligence. Ammun and Lisa allege undue influence, elder abuse, misappropriation of property, negligence, and – I infer – medical negligence. Clearly, it is not possible or necessary to make findings regarding all issues in dispute. 107 Many of the matters deposed to in the affidavits and statements are not of assistance in resolving this matter as to who should be granted permission to make decisions regarding the disposal of Dr Maros’ remains. 108 At the conclusion of the hearing of the application, Mr Richards asked me to receive de bene esse a statutory declaration made by Ammun attaching the transcript of a recording of a meeting between Michael and Lisa said to have taken place on 22 March 2023 and a transcript of a recording of a meeting between Dr Maros, Michael, Ammun, and Lisa said to have taken place on 3 March 2022.21 Ammun contends these recordings are evidence of Dr Maros’ wishes in terms of who she trusted and of “[his] parents’ intention and concern of their vulnerability to the influence and “agendas” of [Alexandra]”. It was contended these recordings, made without Dr Maros’ or Michael’s knowledge, are not illegal recordings contrary to Surveillance Devices Act 2016 (SA) (“the SDA”) as they were recorded for the purposes of protecting Ammun’s lawful interests as an executor and potential beneficiary of Dr Maros’ estate. 109 These recordings were made well before Dr Maros signed the 2023 will on 10 October 2023 appointing Ammun and Lisa her executors. I very much doubt the recordings would fall for consideration as recordings made with a device for the purposes of Ammun’s purported lawful interests such that he could apply for an order of a judge of this Court pursuant to s 9(1)(g) of the SDA authorising the use, communication, or publication of the recordings. In these circumstances, I cannot take the recordings into account. 110 Two further statutory declarations have been filed by Ammun and a further affidavit filed by Lisa following the hearing of the application. I note the statutory declarations refer to Ammun’s intention to establish a natural burial ground on his property, as well as his assertions he had many discussions with his parents about 21 FDN 30 is an affidavit of Ammun exhibiting the transcripts which was filed following the hearing on 6 August 2024. -- 22 of 24 -- [2024] SASC 98 Bampton J 21 the topic and had offered for them to buried there for free. I also note that one of Ammun’s statutory declarations and Lisa’s affidavit annex and refer to a will purportedly made by Michael on 26 April 2023 appointing them executors, changing his bequests, and making no reference to cremation. Ammun asserts this will was made after the publication of an article in the Fleurieu Sun on 6 April 2023 concerning his proposal to establish a natural burial ground on his property. Even though these documents were filed following the reservation of my decision and Michael and Alexandra have not had an opportunity to make submissions on them, I have considered them and insofar as they relate to Michael’s, and by inference Dr Maros’, wishes, I place little weight on these documents having regard to the totality of the evidence. Conclusion 111 In balancing common law principles and practical considerations, I take into account the wishes of Dr Maros, Michael, Alexandra, Ammun, and Lisa. 112 There can be no doubt Dr Maros loved her family deeply. 113 The evidence overwhelming establishes that Dr Maros in life wished to be with her husband of 68 years, whom she met when they were students, with whom she shared two children, and with whom she was living in aged care at the time of her death. Dr Maros trusted Michael to make decisions for her “as he would do what is best”. As recorded by the Tribunal, her clear and consistent wish was for Michael “to make decisions regarding all her affairs” and for her to live wherever he lived. This finding is supported by Michael’s evidence, Alexandra’s evidence, Mr Jackson’s evidence, Dr Huang’s report to the Tribunal dated 10 August 2023, and the Tribunal’s account of their meeting with Dr Maros on 29 February 2024. 114 The fact that Dr Maros signed the 2023 will appointing Ammun and Lisa her executors can be afforded little weight in circumstances where there is a challenge to its validity on clearly arguable grounds of a lack of testamentary capacity. 115 Further, I am satisfied having regard to the evidence of Mr Jackson’s attendance on Dr Maros on 19 February 2024 and the Tribunal’s account of their meeting with her on 29 February 2024, that her wishes remained that she wanted Michael to make decisions for her, including with respect to the disposal of her remains. She loved and trusted Michael and wanted to be wherever he was in life and in death. 116 The fact that Dr Maros’ undeniable love and trust reposed in Michael is determinative of the application. Orders 117 Noting the authority to dispose of human remains dated 4 July 2024 issued pursuant to s 32 of the Coroners Act, I make the following declarations and order: -- 23 of 24 -- [2024] SASC 98 Bampton J 22 1. Michael Maros is the person entitled to make decisions regarding the remains of the late Dr Kathleen Maros. 2. Michael Maros is entitled to arrange the cremation of the remains of the late Dr Kathleen Maros. 3. A permanent injunction restraining Ivan Butler Family Funeral Directors from releasing the remains of the late Dr Kathleen Maros into the care, custody or control of Ammun Luca or Lisa Greig or their agents. 4. Michael Maros be at liberty to retain the ashes of the late Dr Kathleen Maros during his lifetime. -- 24 of 24 --