Who / what is the senior next of kin?
The senior next of kin is a person who has particular legal rights, and these rights activate at discrete stages of the investigation. These rights are the only thing that differentiates the role of the senior next of kin from that of family members and friends who are recognised as interested persons.
The only rights that are exclusive to the senior next of kin under the Act are the rights to:
- object to an autopsy (s 38)
- object to exhumation (s 39)
- be notified of a coroner’s decision not to hold an inquest (s 26(1)(c))
- request a coroner not hold an inquest into a workplace death (s 26A(2)).
Each time one of these rights or matters arises in an investigation, the coroner is required to give the senior next of kin the opportunity to exercise their right(s).
Section 3A of the Coroners Act 1995 (Tas) explains which person is the ‘senior next of kin’. In summary, the senior next of kin will be the first available person on this list:
- the current spouse (which includes the other party to a ‘significant relationship’ according to the definition in the Relationships Act 2003)
- a child who is at least 18 years of age
- a person in a caring relationship (according to s 5 of the Relationships Act 2003)
- a parent
- a sibling who is at least 18 years of age
- an executor of the will
- a personal representative.
A relationship does not need to be registered under the Relationships Act to be afforded rights prescribed thereunder, and relationships include same sex relationships. Refer to Section 4 of the Relationships Act 2003
Note: If the deceased person is Aboriginal, the senior next of kin can also be an ‘appropriate person’ according to the customs and tradition of the community or group to which the person belonged.
Note: Any sibling can be the senior next of kin, it does not need to be the eldest sibling.
In most cases, it is clear who the senior next of kin is and that legal status will not change throughout the investigation. However, sometimes during the course of the investigation new information comes to light, indicating that another person may be the correct senior next of kin. In this case, the coroner is required to evaluate the information (including seeking submissions from any other person asserting that status) and make the determination afresh the next time there is an opportunity for the senior next of kin to exercise a right.
In some cases, two or more people have equal right to the position of senior next of kin (such as a mother and father, or siblings). To facilitate the investigation, coroners expect families to reach an agreed position as to who is the single point of contact / senior next of kin. If there is no clear channel of communication, investigations can be impeded.
To make an application to be declared senior next of kin, or to delegate the responsibilities of the senior next of kin to another person, refer to Application to Access Coronial Records.
All family members and friends are able to apply to the coroner’s court to be recognised as ‘interested persons’ to the proceedings. Even though the senior next of kin is the main point of contact between family members and the coroner’s court, in most cases relevant correspondence will also be sent to other close family members or friends who request it.
If you are a legal practitioner representing the senior next of kin then you may apply to access, view and copy the coronial record.
It is important to note that the coroner’s decision as to who is the senior next of kin is only relevant to proceedings in the coroner’s court. A coroner’s decision in this regard does not affect parties legal rights under other enactments which may require a determination as to senior next of kin.
For more information, refer to Legal Professionals.
What if I don’t want to be senior next of kin?
You can “delegate” your responsibilities as senior next of kin by asking another person to do it for you. You should send the court a ‘statutory declaration’ saying this is what you want, signed both by yourself and by the person you choose. Statutory declaration forms can be found on the Magistrates Court web site, under Forms or collected from the Magistrates Court. Coroner’s court and Magistrates Court staff can assist you to fill out this form.
What if I think I should be senior next of kin but I’m not?
You can apply to the coroner if you think you should be the senior next of kin. It is important to remember that there are only four rights that the senior next of kin has that other interested persons don’t (refer to the list above). To apply, contact the coroner’s court. You will be given the opportunity to give the coroner any information you have about why you are the correct senior next of kin. If the investigation is just beginning and you want to exercise the right to object to the autopsy, you need to contact the coroner’s court right away by telephone. If it is after hours, you can get in touch with police by calling 131 444. Police will pass on any messages to the coroners’ associates; autopsies do not happen on the weekend.
Once the coroner has your information, they will get information from anyone else who says they are the senior next of kin. The coroner will then decide who is the correct senior next of kin. If you don’t agree with the coroner’s decision you should get legal advice as you may want to apply to the Supreme Court to have the decision reviewed.