Disputes on Death: Posthumous Trusts and Disposals of the Body

Speaker: Professor Irit Samet (King’s College, London) and Dr Kate Falconer (University College, Cork)

Join us in person or via Zoom: https://uqz.zoom.us/j/81566717542

Professor Irit Samet ( King’s College, London) -  ‘The Posthumous Trust: From Dead Hand to Mortality Management’

Ownership ceases with death. Like all powers – to vote, enter a  contract or marry, the power to exert private control over property dies with the owner. This truism, however, never stopped owners from trying to influence (or dictate) the afterlife of their property. In allowing trusts to operate after the final departure of the settlor, equity provides them with a most powerful tool for satisfying such hopes. The way in which the trustee must follow the deceased settlor’s wishes triggers a unique and serious ‘dead hand’ problem since the equitable title bestowed on beneficiaries is severely restricted by the trustee’s management powers as these were designed by the (now dead) settlor. From the beneficiaries’ perspective, the posthumous trust can be seen as an exercise in overcontrol or an expression of a pathological refusal to reconcile oneself to the fact of one’s mortality. I wish to offer two ways of conceiving these trusts as a justifiable extension of the power of ownership. One is to see them as expressing the stake people have in what happens in the world after they die. The other is to conceptualise them as a valid response to the way we navigate the consciousness of mortality.

About the Speaker

Irit is a Professor of Law at The Dickson Poon School of Law, King’s College London, where she also serves as the Course Convenor for the core module in Equity & Trusts. She specializes in theory of equity, trust law, and philosophy of private law, with her scholarly contributions focusing on the intersection of private law and morality. She is the author of Equity: Conscience Goes to Market (OUP, 2018) and has co-edited Philosophical Foundations of the Law of Equity (OUP, 2020) and Philosophical Foundations of Express Trust (OUP, 2023). She published papers in leading journals such as the Modern Law Review, Cambridge Law Journal, Law Quarterly Review, Oxford Journal of Legal Studies, American Journal of Jurisprudence, and Law Quarterly Review.

Read Professor Samet's biography and publications

Dr Kate Falconer  (University College, Cork) - 'The Case for Overturning the Executor Priority Rule in Disputes over Dead Bodies'

Disputes relating to the disposal of the bodies of the dead are coming before Australian courts with increasing frequency. These ‘funeral disputes’ arise when surviving loved ones of the deceased disagree as to how, when, where, and/or by whom the deceased’s body will be disposed of. Courts resolve these disputes by vesting in one party the so-called ‘right to possession of the body of the deceased for the purposes of disposal’. The ‘executor priority rule’ means that in cases where the deceased died testate and named an executor, that executor is the primary holder of this right to possession. This rule has never been departed from in the Australian case law, and is nearly always reiterated as the starting point for the legal analysis of post-death disputes. 

This paper makes the case for overturning the executor priority rule in funeral disputes. It makes this argument on multiple bases. First, it looks to the historic development of the rule, arguing that the executor was historically responsible for the disposal of the body of their deceased testator not because of some innate legal link between estate administration and the function of body disposal, but for reasons of expediency underpinned by public health and public decency. Next, this paper argues that the reasons given by courts for gradually resiling from the analogous 'presumptive administrator rule' when vesting the right to possession of the body of an intestate decedent apply equally to the executor priority rule that governs the vesting of the right to possession when the deceased died testate. Third, this paper identifies doctrinal trends that suggest that support for the executor priority rule amongst judges deciding funeral disputes is weakening, arguing that the field of death law is ripe for further, more socially and culturally-appropriate, development.

About the Speaker

Kate is a lecturer at UCC School of Law and a member of the Radical Humanities Library at University College Cork, having previously lectured at the University of Queensland. Her research interests lie in the law of the dead and bodily disposal, and private law's interactions with death, particularly through a socio-legal lens. Amongst many other publications, she is an editor of Life and Death in Private Law  (Hart, 2024).  

 Read Dr Falconer's biography and publications