Every year in Australia over 110,000 people are cremated. Each of these cremations leaves behind physical material – what is commonly referred to as ‘cremated ashes’, or, more succinctly (and no less respectfully), ‘cremains’. In recent decades, Australian courts have begun to impose trusts over this physical material prior to its ultimate disposal. This ‘cremated ashes trust’ provides courts with much-needed flexibility in resolving bitter disputes between those close to the deceased, but, so this article argues, is built on flawed foundations. In particular, this article rejects the explanation given in the case law to date, which sees the trust over cremated ashes as an express trust for a purpose. Instead, it argues that the classification of the cremated ashes trust as a constructive trust best reflects both doctrinal reality and the normative forces that have underpinned its development.
Falconer, Kate, Trusts Over Cremated Ashes (December 1, 2021). (2021) 15(3) Journal of Equity 283.