Son, wife in fight over Vic father's ashes

Supreme Court signage (file image)
A judge has ruled in favour of a wife having control of her husband's ashes after a year's marriage. -AAP Image

A man will have to hand over his father's ashes to his former nanny-turned-stepmother after losing a Supreme Court fight to keep them.

The man's father died from COVID-19 related complications in October last year and was cremated after a funeral in November.

While the man kept his father's ashes after the funeral, a Victorian Supreme Court justice has ordered he hand them over to his stepmother.

His father divorced his mother in September 2020 after 39 years of marriage and married his second wife a month later.

That woman, who had been the family's nanny and cared for the son as a child, told the court she had been in a relationship with her new husband since the 1990s.

They had a child together in 2002.

After his death the man's son arranged his funeral in accordance with what he said were instructions in a 2017 will.

"After I pass away, my funeral arrangements shall be solely decided by my son ... other family members shall not interfere," the document said.

A second property agreement said "how my ashes should be kept shall be decided solely by (my son)".

The wife argued both documents were forgeries.

The son did not tell his father's wife what he had done with the ashes, and she did not ask him, the court heard.

Issues arose between January and March this year when the son refused requests by the woman's lawyers for a copy of the death certificate.

When one was provided in April it was revealed to have multiple errors - referring to the first wife as his current wife and not referencing his daughter at all.

The court heard the son was responsible for the errors. He claimed he had misunderstood the form.

Justice Steven Moore said the man lived happily with his second wife for the last 12 months of his life and it was appropriate the son hand over to her his father's ashes.

It would be inconsistent with community expectations if a deceased person's spouse did not have authority and control over their partner's remains, he found.

He also questioned the relationship between the father and son, pointing to disparaging comments made by the son and the fact he only learned through a cousin that his father had been hospitalised with COVID.

"All of these matters sit uneasily with the defendant's claim that he maintained a 'normal father and son relationship' with the deceased until his death," Justice Moore said.

The wife had offered to consult with him about how the ashes would be dealt with.

Justice Moore ordered that after consultation the wife have the right to deal with the ashes in her sole discretion.