2. Funeral and burial instructions: Current law

 

Introduction

  1. 2.1 This chapter sets out the law relating to funeral and burial wishes in Australia, England, New Zealand and some jurisdictions in Canada and the United States of America.
  2. 2.2 The common law, or judge made law, of each country is explained, followed by legislative developments in Australia, Canada and the United States.

Funeral and burial instructions in the common law

Australia

  1. 2.3 In Australia, the common law position in relation to funeral and burial instructions is settled—a person’s wishes with respect to the disposal of their body are not legally binding.1 The person with the right to dispose of the body may do so in any manner they choose, provided it is not unlawful,2 wholly unreasonable3 or exercised in a way that prevents family and friends from reasonably and appropriately expressing affection for the deceased.4
  2. 2.4 In some Australian jurisdictions, legislation has been enacted recognising a person’s wish to be, or not be, cremated. This legislation does not cover a person’s funeral and burial wishes, other than in relation to cremation. It is discussed at [2.37]–[2.41].

Selecting the right holder

Executor rule
  1. 2.5 Where a deceased has named an executor in their will, the executor has the right to dispose of the deceased’s body.5 Where the executor is not ready, willing or able to arrange the disposal, the court may decline to grant the right of disposal to the executor.6 The court may also decline to make such a grant where there is ‘real doubt’ about the capacity of the deceased to make the will.7
 
Likely administrator rule
  1. 2.6 Where the deceased has not left a will, the right of disposal goes to the person most likely to be awarded the right to administer the deceased’s estate.8 The order of priority for administering an estate is found in the common law in Victoria and Western Australia.9 In all other states and territories, the order is governed by statute.10 At common law, the order of priority is:
  • spouse or domestic partner of the deceased11
  • children of the deceased12 or, if the children are not yet 18 years of age, the children’s guardian13
  • adoptive parents of the deceased14
  • biological parents of the deceased15
  • foster parents of the deceased16
  • extended family of the deceased17
  • householder of the premises in which the deceased passed away.18
  1. 2.7 Where two people have an equal claim to administer an estate, such as two parents of the deceased, the courts must consider the ‘practicalities of burial without unreasonable delay’.19 This is so that a prompt burial takes place,20 and family and friends of the deceased have the opportunity to attend the funeral.21
  2. 2.8 The likely administrator rule has been described as ‘the usual approach’,22 ‘not an inflexible rule’,23 and ‘a sensible, practical prima facie test’.24 This allows the courts to consider other material factors when deciding who has the right to dispose of a body, including cultural factors and the wishes of the deceased.25
  3. 2.9 An administrator, or likely administrator, may be passed over if they are of bad character or otherwise unfit to act.26

 

Nature of the right to dispose of the body

  1. 2.10 The person with the right to dispose of the body and the accompanying right to possess the body for the purpose of disposal27 has sole discretion as to how the body may be disposed of, subject to the requirements that they not exercise their discretion unlawfully,28 wholly unreasonably29 or in a way that prevents family and friends from reasonably and appropriately expressing affection for the deceased.30
  2. 2.11 The right to dispose of the body includes the right to possess the ashes and to direct how the ashes are disposed of.31 The right to possess the ashes is a proprietary one, subject only to the qualification that the ashes should be treated with appropriate respect and reverence.32

Canada

  1. 2.12 In Canada, the person with the right to dispose of the body may do so in any manner they wish, regardless of the deceased person’s instructions.33
  2. 2.13 In Hunter v Hunter,34 the court found that the deceased’s executor had the right to bury the body and that the executor did not have to adhere to the wishes of the deceased in relation to the location of disposal.35
  3. 2.14 In that case, the deceased, who was a Protestant, had expressed a wish to be buried next to his wife, a Roman Catholic, who had not yet died. Shortly before his death he was baptised and received into the Roman Catholic Church. Upon his death, the deceased’s son, who was the executor of the deceased’s will, successfully applied to the court to stop his mother burying his father in the Roman Catholic cemetery.36 Instead the deceased was buried in a Protestant cemetery, in accordance with the son’s wishes.37
  4. 2.15 More recently, in Saleh v Reichert,38 the court considered the executor rule in the context of a deceased Muslim woman who had asked to be cremated. Her husband, who had been appointed administrator of her estate, wanted to carry out her wishes. However, her father opposed her cremation, as it was contrary to the Muslim faith.39
  5. 2.16 The court found that the administrator of the deceased’s estate had the duty to dispose of her body and thus the right to determine the method of disposal, provided that the remains were disposed of in a ‘decent and dignified fashion’.40
  6. 2.17 Legislation in some Canadian provinces allows people to leave binding funeral and burial instructions. This is discussed at [2.42]–[2.44].

 

England

  1. 2.18 The seminal English case of Williams v Williams41 remains the core authority for the common law approach in Australia, Canada, England and New Zealand.
  2. 2.19 In Williams v Williams the court held: ‘It is quite clearly the law of this country that there can be no property in the dead body of a human being.42 The court found that consequently a person cannot leave binding instructions regarding the disposal of their body,43 and that an executor does not own the body they have a duty to dispose of. Nonetheless, they have the right to possess the body until it is properly buried.44
  3. 2.20 The relevance of the deceased’s wishes was recently considered in Borrows v HM Coroner for Preston.45 Following the suicide of a 15-year-old boy, the boy’s mother sought to have him buried alongside other members of her family, notwithstanding the fact that he had asked to be cremated. His uncle, with whom he had lived for the last eight years of his life, wanted to have the boy cremated in accordance with the boy’s wishes.46
  4. 2.21 While the hierarchy of administrators favoured the boy’s mother over the boy’s uncle,47 the Supreme Court Act 1981 (UK) empowered the High Court to appoint an administrator other than in accordance with the hierarchy if it was necessary or expedient by reason of special circumstances.48 In finding in favour of the boy’s uncle, Justice Cranston identified a number of special circumstances, including that the mother’s long-term heroin addiction rendered her incapable of handling the boy’s funeral arrangements, and that the mother continually expressed a desire to bury her son in a manner that was contrary to his wishes.49

New Zealand

  1. 2.22 The common law approach in New Zealand differs from the approach advanced in Australia, Canada and England.
  2. 2.23 While the executor or likely administrator has the right to control the disposal of the deceased, they must make appropriate decisions about the method and place of disposal after taking into account relevant factors.

Selecting the right holder

  1. 2.24 The majority judgment in the case of Takamore v Clarke50 considered that the executor rule was well established.51
  2. 2.25 In that case, a dispute arose as to where a Maori deceased should be buried. His partner and executor under his will wanted him to be buried in a cemetery close to her and their children, but his birth family wanted him to be buried in the traditional burial ground of the deceased’s father and ancestors. While discussions about the place of burial were ongoing, the deceased’s birth family took the body and buried it in accordance with their wishes.
  3. 2.26 All five judges of the Supreme Court, New Zealand’s highest court, held that the deceased’s partner had the right to dispose of the body, but for different reasons.52
    The majority53 found that the executor and likely administrator rules exist in New Zealand54 and that those rules come into effect when nothing is done to dispose of a body or when a dispute arises.55 Where family and friends agree on a deceased’s funeral and burial arrangements, there is no need for the executor or likely administrator to intervene.

Nature of the right to dispose of the body

  1. 2.27 The majority in Takamore v Clarke56 found that the person with the right to control the disposal of the body must make appropriate funeral and burial arrangements after taking into account the deceased’s wishes, the views of family members and the deceased’s cultural or religious background. The right holder does not have to seek out this information but should consider it where it is made known to them.57
  2. 2.28 The person with the right to dispose of the body may also have regard to the practicalities of achieving burial or cremation without undue delay.58
  3. 2.29 The decisions of the right holder are subject to review. The majority found that an aggrieved party may ask the court to review the appropriateness of the right holder’s decision.59

United States of America

  1. 2.30 The common law position developed by the courts in the United States is that funeral and burial instructions are binding unless there is a compelling reason not to carry them out.
  2. 2.31 Some legislative regimes across the United States allow people to leave binding funeral and burial instructions and/or appoint a funeral and burial agent. These are discussed at [2.45]–[2.50].

Selecting the right holder

  1. 2.32 The executor rule does not exist in the United States. The person with the right to dispose of a body is the person who is most entitled to inherit the estate of a deceased who has died intestate, meaning that the duty falls on the spouse, followed by the children, followed by the parents, and so on.60 This is regardless of whether the deceased dies with a will in which they have named an executor.
  2. 2.33 The views of the executor of the deceased’s will regarding the deceased’s disposal carry little weight.61 Where a person with the right to dispose of the body attempts to do so in a manner that is contrary to the wishes of the deceased, the courts will award custody of the body to those who will give effect to the deceased’s wishes.62

 

Nature of the right to dispose of the body

  1. 2.34 Where the wishes of the deceased are contained in a will, the courts will uphold the primacy of the wishes of the deceased against all others, unless there is a compelling reason not to do so.63 However, the courts have declined to uphold the deceased person’s testamentary instructions regarding the disposal of their body where the evidence indicated that the deceased person had changed their mind since creating the will, and where performance of the wishes had become impossible.64
  2. 2.35 Where the deceased’s instructions are not expressed in a will, but their wishes were expressed orally or in a document other than a will, the courts will often, but not always, uphold the deceased’s wishes. Such disputes must be decided on a case-by-case basis having regard to competing interests.65

Funeral and burial instructions in legislation

  1. 2.36 In some jurisdictions in Australia, Canada and the United States, legislation has been enacted to recognise the wishes of the deceased in relation to the final disposal of their body in certain circumstances. Neither England nor New Zealand has enacted such legislation.

Australia

  1. 2.37 With the exception of Tasmania and Victoria, every Australian state and territory upholds people’s wishes to be cremated and/or their wishes not to be cremated in certain circumstances.

Wishes to cremate

  1. 2.38 In New South Wales and Queensland, when the deceased has left written instructions expressing a desire to be cremated, the law prohibits disposal of the body other than in accordance with those instructions.66 In Western Australia, when the deceased has expressed a desire in written instructions to be cremated, legislation obliges the administrator of the deceased’s estate to use all reasonable endeavours to carry out the deceased’s wishes regarding their cremation.67
  2. 2.39 In the Northern Territory, Queensland, South Australia and Western Australia, when a personal representative or next of kin objects to the cremation of the deceased, legislation awards primacy to the wishes of the deceased where the deceased has left signed or attested written instructions expressing a desire to be cremated.68

 

Wishes not to cremate

  1. 2.40 In the Australian Capital Territory, New South Wales and Western Australia, if a deceased leaves instructions expressing a desire not to be cremated, it is unlawful to cremate the body.69
  2. 2.41 In Victoria, similar legislation that generally recognised a person’s instructions not to cremate was repealed in 2003.70 However, Victoria continues to recognise, to a limited extent, the wishes of people without sufficient resources to pay for their own funeral or burial. When a magistrate or coroner makes an order requiring a cemetery to dispose of a person’s body free of charge, the magistrate or coroner must direct the cemetery to cremate the body unless cremation was contrary to the wishes or religion of the deceased.71

Canada

  1. 2.42 Legislation in British Columbia and Quebec creates an obligation on the person who disposes of a body to carry out the deceased’s funeral and burial instructions.72

Funeral and burial instructions

  1. 2.43 In British Columbia, the Cremation, Interment and Funeral Services Act, SBC 2004 provides that the deceased’s written preference regarding their disposal is binding on the relevant person within the statutory hierarchy if the preference is stated in a will or funeral services contract and compliance ‘would not be unreasonable or impracticable or cause hardship’.73
  2. 2.44 The Civil Code of Quebec states that ‘a person of full age may determine the nature of his funeral and the disposal of his body’ and that a minor may do so with the consent of their parent or guardian.74 Quebec’s courts have found that instructions left in accordance with this statute may be written or oral.75

United States of America

  1. 2.45 Legislative regimes exist across the United States that allow people to leave funeral and burial instructions that are binding on the person with the right to dispose of their body and/or to appoint a funeral and burial agent with the right to dispose of their body.76

Funeral and burial agent

  1. 2.46 A number of statutes establish a hierarchy of people authorised to control the disposal of human remains. An agent appointed by the deceased for that purpose is at the top, followed by the deceased’s spouse, then the deceased’s children, and so on.

 

Funeral and burial instructions

  1. 2.47 Instructions left by the deceased regarding their funeral or burial are binding on the person with the right to control their disposal.77
  2. 2.48 The form instructions must take differs from state to state. With one exception, all states require written instructions and, of those states, most have specific requirements about the kind of document the instructions must be contained in.78 The exception is Montana where a person can leave instructions in a video recording, as long as two adult witnesses attest in writing to the recording’s accuracy.79
  3. 2.49 The nature of the obligation to adhere to the deceased’s instructions also differs from state to state. In Texas, the person with the right to dispose of the body must only adhere to instructions to the extent that they or the estate can afford to do so.80 In Minnesota, the instructions must also be reasonable and lawful.81
  4. 2.50 In Delaware, the right holder only has to adhere to instructions that are ‘reasonable under the circumstances’.82 Among the factors the right holder may take into account when deciding whether the instructions are reasonable under the circumstances are the size of the deceased’s estate, cultural or family customs, and the deceased’s religious or spiritual beliefs.83

Conclusion

  1. 2.51 A review of the common law in Australia, Canada, England, New Zealand and the United States reveals three different approaches to funeral and burial wishes:
  • The person with the right to control the disposal of the deceased’s body may dispose of the body in any manner they wish, subject to limited exceptions.
  • The person with the right to control the disposal of the deceased’s body must make appropriate arrangements after taking into account relevant factors, including the wishes of the deceased and those of their family members.
  • The deceased’s wishes must be carried out unless there is a compelling reason not to do so.
  1. 2.52 Jurisdictions in Australia, Canada and the United States have also adopted three different legislative approaches to funeral and burial wishes:
  • The deceased’s instructions regarding cremation must be carried out in certain circumstances.
  • A person may leave funeral and burial instructions that are binding on the person with the right to control the disposal of the deceased’s body.
  • A person may appoint an agent to control their funeral and burial arrangements.
  1. 2.53 These approaches informed the four options for reform the Commission put forward in its consultation paper on funeral and burial instructions. These reform options, and the community’s responses to them, are discussed in Chapter 5.

Footnotes

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