Warren Centre Seminar: Kate Falconer
The Warren Centre for Civil Justice invites you to attend a lunchtime seminar presented by Monash Law visiting scholar, Dr Kate Falconer, Lecturer, School of Law and Radical Humanities Laboratory, University College Cork, Ireland.
Event Details
The case for overturning the executor priority rule in disputes over dead bodies
Date: Wednesday 1 July 2026
Time: 12:30pm - 2pm AEST
Campus: Monash University Clayton, or Zoom
Disputes relating to the disposal of the bodies of the dead come before Australian courts with surprising 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 above all others. The priority position of the executor has been characterised as a binding rule of the Australian common law. However, there are indications in several recent funeral dispute cases that this foundational position is becoming less stable.
In support of this move, this paper sets out the case for overturning the executor priority rule in Australian funeral disputes. It makes this argument on three bases.
First, it argues that the executor priority rule lacks a compelling rationale, the historical development of the legal architecture of body disposal law instead identifying several classes of people - including, but not limited to, the executor - as being responsible for disposing of the deceased's body. Next, this paper makes the case for doctrinal consistency, taking the position that the executor priority rule should be considered analogously to the ‘presumptive administrator’ rule that has been nearly entirely resiled from by Australian courts. Finally, this paper argues that the executor priority rule does not align with the social experience of death in modern Australia.
Presented by the Monash University Warren Centre for Civil Justice.
Speaker
Dr Kate Falconer
Kate Falconer is a Lecturer at the UCC School of Law, and is cross-posted with the Radical Humanities Laboratory. 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. Kate is currently the PI on the Research Ireland-funded BoDIESS project, which examines changing death and funerary care preferences in Ireland in the context of emerging legal and regulatory frameworks, changing population demographics, increasing environmental awareness, and the rising cost of living.
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