3. Funeral and burial disputes

 

Introduction

  1. 3.1 Over the course of its inquiry, the Commission was told about numerous funeral and burial disputes that had a significant and lasting detrimental impact on those involved.
  2. 3.2 This chapter discusses the perceived cause of a large number of funeral and burial disputes—society’s reluctance to talk about death. It also discusses some of the common features of disputes, as well as the family types that are more likely to experience disputes.
  3. 3.3 A number of case studies have been included to illustrate the complex nature of funeral and burial disputes and the harm they cause.

Society’s reluctance to talk about death

  1. 3.4 Many people told the Commission that we live in a ‘death-denying society’1 in which death is considered a ‘taboo topic’.2 Consequently, too few people discuss their funeral and burial wishes with family and friends, and disputes arise.3
  2. 3.5 Annie Whitlocke, Pastoral Carer, Monash Medical Centre, told the Commission that she tries to initiate discussions about death with her patients because it can be difficult for patients to have these conversations with family members. Ms Whitlocke provided the example of a patient with terminal cancer whose family insisted that he was going to recover until the very end and thereby denied him the opportunity to talk to them about his impending death.4
  3. 3.6 Molly Carlile, a member of Palliative Care Victoria, told the Commission that it is not her patients who struggle to talk about death, but her patients’ family members. Ms Carlile recounted a situation in which she was able to alleviate some of her patient’s fears about her impending death by telling her what they would do with her body after she died. The patient’s daughter was subsequently critical of this conversation as she felt it signified that her mother was ‘giving up’.5
  4. 3.7 Christine Hennequin, Manager of Support and Development, Spiritual Health Victoria, stated that it was a shame that people avoid talking to each other about death considering that, when it occurs, it becomes such a communal event. Although she also noted that even when it occurs, we avoid acknowledging it directly, instead using words such as ‘passing’.6
  5. 3.8 Dwayne Atkinson, Emergency Relief Funeral Coordinator, Rumbalara Aboriginal Cooperative, explained that some Aboriginal people feel that talking about death has detrimental spiritual implications.
  6. 3.9 Mr Atkinson stated that, like most young people, young Aboriginal people do not often think about what they would like to happen to their body when they die. As the average life expectancy for Aboriginal people is significantly lower than that of the non-Aboriginal population, even fewer Aboriginal people have turned their mind to their funeral and burial wishes at the time of their death.7
  7. 3.10 The Hindu Community Council of Victoria explained that some Hindu people feel that death is ‘not a good omen’ and that talking about death may bring it on.8
  8. 3.11 The Chinese Cancer Society of Victoria explained that some members of the Chinese community shun the topic for similar reasons.9
  9. 3.12 A number of stakeholders highlighted the importance of talking about funeral and burial arrangements with family and friends.10 It was thought that this would prevent disputes by:
  • providing clarity and certainty about what the deceased wanted for those likely to arrange the deceased’s funeral and burial11
  • giving people a chance to explain the meaning behind their funeral and burial wishes to those likely to arrange their funeral and burial12
  • allowing those arranging the deceased’s funeral and burial to derive meaning from giving effect to what the deceased wanted.13

Features of funeral and burial disputes

  1. 3.13 While funeral and burial disputes involve a difference of opinion between the bereaved about the deceased’s funeral and burial arrangements, it is often the case that some bereaved want to give effect to the deceased’s wishes, while others do not. In that sense, disputes may involve a difference of opinion between the bereaved and the deceased.
  2. 3.14 Among the issues that people commonly disagree about are:
  • when and where to hold the funeral service
  • the style and content of the funeral service
  • who can attend the funeral service
  • the place of burial
  • where ashes are to be kept or scattered
  • how the deceased is to be memorialised
  • the cost of the funeral, burial and/or memorialisation.14
  1. 3.15 Many bereaved choose not to adhere to the deceased’s wishes because the deceased’s wishes are contrary to their own. A common example of this is where a bereaved chooses not to scatter the deceased’s ashes at a place or time specified by the deceased because they are not yet ready to do so.15 Another common example is where the deceased expressed a wish to be given a simple funeral, or no funeral at all, but the family arranges an elaborate funeral.16
  2. 3.16 Some bereaved expressed the view that the effort involved in carrying out the deceased’s wishes, such as burying the deceased with their parents in another city or country, was too great, and thus they elected not to do it.17
  3. 3.17 Several people recounted stories in which the bereaved opted for a ‘quick cremation’18 as that was the cheapest option, even though the deceased had expressed wishes for a burial and ceremony.19
  4. 3.18 A cemetery trust representative told the Commission that family members sometimes ‘cash in’ the right of interment. In such cases, a person has bought a plot, and may have left wishes for their burial, but the person’s family members instead opt for a quick cremation and apply for a refund for the pre-paid plot.20
  5. 3.19 The following case studies of funeral and burial disputes illustrate some of the general features identified above.21
Case study 1

A woman was engaged to a man whose family lived in New Zealand. She lived with her fiancé in Australia. The woman was admitted to hospital to undergo a major operation. On the day of her operation, her fiancé committed suicide. Her fiancé left her a letter expressing a wish to be cremated and to have his ashes scattered on a property they had purchased together.

While the woman was in hospital recovering from her operation, the deceased’s mother travelled to Australia to take his body to New Zealand for burial. Even though the mother knew about her son’s relationship with the woman, she did not inform the woman or discuss her plan.

This all took place within a matter of days and by the time the woman was discharged from hospital, her fiancé had been buried in New Zealand. The woman contacted her fiancé’s mother to talk about what had happened and how it had made her feel. The mother was unable to understand the woman’s feelings about being excluded. The woman chose not to disclose the information contained in the deceased’s letter as she believed this may have caused his mother sadness and regret over her actions.22

 
 
Case study 2

A man of Chinese heritage passed away and was survived by a number of adult children. He did not leave any funeral and burial directions.

Traditionally, Chinese funerals and burials are arranged by the eldest son in the family who acts as the ‘chief decision maker’.23 Many Chinese people believe in holding elaborate funerals and burials, especially where the deceased or their family is considered wealthy. Some Chinese people take out loans to fund such funerals.24

In this instance, the deceased’s eldest child, his daughter, wanted a simple funeral for the deceased. The remaining siblings agreed. However, the daughter’s husband (the deceased’s son-in-law) did not agree with the children of the deceased and considered himself the decision maker as he was the eldest male in the family. He thus arranged an extravagant and lavish funeral for the deceased against the wishes of the deceased’s children. The siblings no longer talk to the eldest daughter and her husband.25  

Families more likely to experience funeral and burial disputes

  1. 3.20 A review of the funeral and burial disputes relayed to the Commission and the cases that have been determined in Australian courts reveals that certain family types are more likely to experience disputes. As discussed in the following paragraphs, these are:
  • families of Aboriginal deceased
  • cross-cultural families
  • blended families
  • families of lesbian, gay, bisexual, transgender and intersex (LGBTI) deceased
  • families in conflict.

Families of Aboriginal deceased

  1. 3.21 Nearly half of the cases that have been determined by the courts in Australia have involved Aboriginal deceased.26
  2. 3.22 The Commission was told that funerals and burials are particularly significant for Aboriginal people and form an integral part of Aboriginal culture.27 For many, it is important to be buried on country. Burial on country is believed to allow the deceased to ‘rest better’.28 Ian Hamm, a Yorta Yorta man, told the Commission:

[Being buried on country is] about who we are as a people and our attachment to our country, particularly our tribal country. Many of us in the urban environment of south-east Australia don’t live on country. We have to move for work and for other reasons, and we are dispersed through history; so our return to our dreamtime, our place of our dreaming, of our ancestors, after we pass, is an intrinsic part of who we are and who we will always be.29

  1. 3.23 The Commission was told that in general in the Victorian Aboriginal context, funeral and burial rituals are not prescriptive,30 and an Aboriginal person’s choices regarding their funeral and burial will depend on their ‘life story’.31
  2. 3.24 While ‘there is not one Koori way of burial’,32 the Commission was told that an Aboriginal person’s funeral rituals may include smoking ceremonies, didgeridoo playing and dancing.33
  3. 3.25 Aboriginal people may belong to different religions, such as Christianity and Islam.34 For some people, their Aboriginal heritage and their religion may be equally important to recognise during their funeral and burial.
  4. 3.26 According to Professor Prue Vines, there is evidence to suggest that many Aboriginal people choose to make a will because it allows them to control the disposal of their body to the extent that they can by appointing an executor of their choice.35
  5. 3.27 Anne Cregan, Special Counsel, Gilbert + Tobin, who conducts wills clinics in Aboriginal communities, observed that many Aboriginal people:

are less concerned about their own wishes being fulfilled in relation to what happens to their body after they pass than they are about avoiding disputes between family members about what happens to their body.36

  1. 3.28 Ms Cregan explained that this is because many of her Aboriginal clients have experienced funeral and burial disputes following the death of family members and the probability of it occurring in relation to their own death resonates with them.37
  2. 3.29 The Commission was told that a common funeral and burial dispute that arises in Aboriginal families relates to whose country the deceased is to be buried on.38 According to the Victorian Aboriginal Legal Service:

Different members of the deceased’s family have different ideas about where … the deceased should be buried. For example, where the deceased person’s parents are from two different traditional owner groups and the deceased lived away from the traditional country, family members from each side may each want the deceased to be buried on their country.39

  1. 3.30 Dwayne Atkinson and Linda Bamblett, Executive Officer, Victorian Aboriginal Community Services Association Limited, told the Commission that families formed through fostering and adoption can experience greater complexity when trying to decide the country on which the deceased should be buried.40
  2. 3.31 Disputes can also arise between a deceased’s non-Aboriginal partner and the deceased’s birth family.41 According to the Victorian Aboriginal Legal Service:

when an Aboriginal person is married to a non-Aboriginal person the deceased’s spouse may want the deceased to be buried nearby so that their local and immediate families will have access to their grave. Whereas, the deceased’s Aboriginal family may want the deceased to be buried on their traditional lands in accordance with their customs.42

  1. 3.32 The following case studies illustrate the types of funeral and burial disputes experienced by families of Aboriginal deceased.
Case study 3

A woman’s domestic partner died in circumstances that were reportable to the Coroner. The woman and the deceased, both of whom were Aboriginal but from different parts of Australia, lived together in Victoria and had children.

After the Coroner determined that the woman was the deceased’s senior next of kin, the deceased’s mother commenced proceedings in the Supreme Court of Victoria for a review of the Coroner’s decision. The deceased’s mother wanted to be recognised as the deceased’s senior next of kin so that she could bury the deceased on her ancestor’s country. The deceased was known to be estranged from his mother.

The matter was stood down so the parties could undertake mediation. It was ultimately agreed that the partner would conduct a memorial service in Melbourne, after which the body would be returned to his mother for burial on country.43

Case study 4

An Aboriginal man told his family that he wanted to be buried with his nephew as the two had been raised like brothers and were very close all of their lives.

When the man died, his family chose not to carry out his wishes as they felt it was more important for him to be buried on his ancestor’s country where other family members had also been buried.44

 

Cross-cultural families

  1. 3.33 The Commission met with members from different cultural and faith communities to learn about their funeral and burial practices, and about the issues that drive disputes in cross-cultural families. The Commission met with members of Victoria’s Hindu, Muslim, Jewish, Chinese, Italian and Zomi communities.45
  2. 3.34 Many people told the Commission that funeral and burial disputes commonly occur in cross-cultural families.46 For example, parents from different cultural or religious backgrounds may not agree about how to dispose of the body of their deceased child.47
  3. 3.35 A dispute may arise where the deceased wants a religious funeral even though they did not actively practise the religion they were born into for the majority of their life.48 Rhonda Nirens, Executive Director/Funeral Director, Bet-Olam Jewish Funerals, explained that when a non-practising Jew requests a Jewish funeral, non-Jewish family members can become confused by, or even oppose, the request because they do not understand the required funeral rituals.49
  4. 3.36 Mohamed Mohideen, Vice President, Islamic Council of Victoria, explained that Muslims, even if they are not particularly devout, are likely to desire a Muslim funeral and burial when they die.50
  5. 3.37 On the other hand, those who do not practise the religion they were born into may reject cultural or religious funeral and burial customs for practical or personal reasons.51
  6. 3.38 Fred Grossman, General Manager, Melbourne Chevra Kadisha, explained that conflict can occur when a Jewish person wishes to be cremated instead of being buried in accordance with Jewish custom.52
  7. 3.39 Ms Nirens explained that some Holocaust survivors and their family members ask to be cremated because for them it is a link to their family members who were killed in the concentration camps in World War II.53
  8. 3.40 The Hindu Community Council of Victoria told the Commission that cross-cultural conflict may also arise due to intergenerational differences. Abhay Aswathi, President, Hindu Community Council of Victoria, explained that many young Hindu people, especially those who were born or grew up in Victoria, support their religion overall, but favour relaxing funeral and burial rituals that have been traditionally observed. This is especially so where they are unfamiliar with the form or meaning of the rituals.54
  9. 3.41 The following case studies illustrate the types of funeral and burial disputes experienced by cross-cultural families.55
Case study 5

A person who identified as atheist appointed a person, who he believed was agnostic, as the executor of his will. When the person died, the executor unexpectedly insisted on a religious funeral.

The deceased was staunchly opposed to religious ideologies and rituals during his life, as were most of his family members. Family members described the funeral as disrespectful.56

Case study 6

A person who identified as Muslim but did not practise Islam told his non-Muslim wife that he wanted to be cremated. Upon his death, his spouse sought to cremate him according to his wishes but was met with opposition from his birth family who wanted to bury the deceased in accordance with Islamic tradition, which does not permit cremation.57

A faith leader was contacted by the birth family and negotiated an agreement between both parties. It was agreed that Islamic funeral rituals would be performed on the body of the deceased by the birth family before the body was then returned to the wife for cremation. The faith leader gave an undertaking to the deceased’s wife that he would ensure her husband’s body would be returned to her for final disposal in accordance with the law.58

 

Blended families

  1. 3.42 The Commission was told that blended families are more likely to experience funeral and burial disputes following the death of a family member.59 Blended families are families made up of the members of separate families, usually as a result of the parents’ repartnering.
  2. 3.43 The Department of Health and Human Services Cemeteries and Crematoria Unit describes these families as ‘complex family constellations’ which often involve ‘multiple players with multiple interests’ in funeral and burial disputes.60
  3. 3.44 The following case studies illustrate the types of funeral and burial disputes experienced by blended families.61
Case study 7

A man died and was survived by his second wife and adult children from his first marriage.

The deceased’s second wife wanted to bury the deceased in a double plot so that she could be buried with him when she died. The deceased’s children strongly objected to this and instead wanted to bury the deceased in a single plot or with their mother (the deceased’s first wife) who had died previously.

The second wife was the executor under the deceased’s will and therefore had control over the disposal of the deceased’s body. She buried him in the double plot.62

Case study 8

A man who died unexpectedly was survived by his second wife and adult children from his first marriage.

The second wife and children could not agree about who should have control over the deceased’s funeral arrangements. The second wife wanted to spend some time alone with the deceased’s body as per the mourning rituals in her country of origin. The deceased’s children would not agree to this.

The matter went to court where it was found that both the second wife and children had equal rights to control the disposal of the deceased’s body.63 As a result, two consecutive funerals took place. Security guards were present for each funeral due to the animosity between the parties.

The deceased’s second wife had no other family support in Australia. Both the dispute and the fact that she was prevented from observing her mourning rituals compounded her bereavement.64

 

Families of LGBTI deceased65

  1. 3.45 Members of Victoria’s lesbian, gay, bisexual, transgender and intersex (LGBTI) communities face common challenges when planning their own funeral and burial, or that of another LGBTI person.
  2. 3.46 Many members of the LGBTI community become estranged from family members who are unaccepting of their LGBTI status.66
  3. 3.47 As members of Matrix Guild Victoria explained, many lesbians cannot rely on their birth families as they get older.67 As a result, they consider members of their lesbian community to be their ‘family members of choice’.68
  4. 3.48 Transgender Victoria further stated that families who do not treat an LGBTI person with dignity and respect during their lifetime inevitably continue this behaviour during their funeral and burial.69
  5. 3.49 The Commission heard many accounts of funeral and burials that were ‘straightwashed’70 by estranged family members who intervened at the time of the person’s death, often after long periods of estrangement.71 Frequently, the sexuality of the deceased, their partner or their lifelong friendships with LGBTI people were not referred to during the funeral. In one case, the deceased’s partner of 15 years was not allowed to speak during the funeral.72 The Commission was also told of instances in which the deceased’s partner and LGBTI friends were prevented from attending the deceased’s funeral and burial.73
  6. 3.50 The Commission was informed that transgender deceased are often not referred to by their chosen gender or name following their death. Instead, family members speak only of their time as a person of the opposite gender, use their birth name and opposite pronoun, and dress the deceased in clothing typical of the opposite gender.74
  7. 3.51 Some LGBTI people appoint their partner or LGBTI friend as their executor so that their funeral and burial reflects their ‘true self’.75 However, the Commission was told that it is not uncommon for birth families and funeral directors to ignore LGBTI executors in favour of birth families.76
  8. 3.52 The following case studies illustrate the types of funeral and burial disputes experienced by families of LGBTI deceased.77
 
Case study 9

A transgender woman died without an executor. Her birth family, who had never accepted her transition, arranged her funeral and burial.

At the funeral, the deceased was only referred to by her male birth name and was dressed in male clothing. Only her years living as a man were recounted by those who spoke. The deceased’s friends from the transgender community were ignored and shunned by the hostile birth family at the funeral service and they found the service very distressing. These friends assume that her headstone depicts only her male birth name.78

Case study 10

A lesbian appointed her sibling and two friends, one of whom was also a lesbian, as executors in her will. The deceased had not included funeral and burial wishes in her will, however, it was known to her lesbian friend that the deceased wanted her involved in her funeral and burial.

When the deceased died, the birth family immediately engaged funeral directors and prevented the lesbian friend from making any arrangements. Instead, she was simply told where and when the funeral would take place. The birth family also decided to cremate the deceased and scatter the ashes without involving the lesbian friend in the decision.79

 

Families in conflict

  1. 3.53 Many people told the Commission that family conflict often precedes a funeral and burial dispute.80 That is, funeral and burial disputes are simply the setting in which pre-existing family tensions manifest.81
  2. 3.54 Anne Cregan explained that funeral and burial disputes largely occur between family members who do not get along from the outset, and that this dynamic simply becomes more entrenched during a funeral and burial dispute.82 The Commission was told that this applies to ‘problem-saturated families’83 who have difficulty addressing and resolving interpersonal conflict.84 A common scenario includes conflict or hostility between siblings.85
  3. 3.55 Parties to a dispute are often driven by their desire to convey and memorialise their relationship with the deceased in a certain way and, as a consequence, they may hold very rigid and uncompromising views.86 However, a community member told the Commission that while many assume that families are driven by their love and affection for the deceased, some are driven by a desire to control and assert their views over others.87
  4. 3.56 The following case studies illustrate the types of funeral and burial disputes experienced by families in conflict.88
 
Case study 11

A woman was involved in an ongoing dispute with her siblings about the care of their mother at the time of their mother’s death. This woman was their mother’s executor under her will.

The mother had told all of her children that she wanted to be buried with her deceased brother and have a particular statue erected on her headstone. The mother had pointed out the type of headstone she wanted on a number of occasions while researching her family history at her local cemetery.

The woman’s brother owned the plot in which their uncle was already buried and in which their mother wanted to be buried. While he allowed the woman to bury their mother with their uncle, he would not allow her to install the headstone his mother had requested.

The brother has said that he will allow the woman to install the headstone if she agrees to cease all contact with him and his children. The woman refuses to do this and says that the dispute has prevented her from grieving properly for her mother. The woman believes that leaving the grave unmarked ‘is the ultimate disrespect’.89

Case study 12

A woman died and was survived by her husband, who was the executor of her will, and their two adult daughters.

The daughters had a history of quarrelling. As the deceased was a practising Christian, one of the daughters wanted to give the deceased a religious funeral, however, the other did not. The daughters also fought over what the deceased should wear and various other aspects of the funeral and burial.

A relative had to mediate between the two daughters as their father was unable to assist them. The relative believes that it would have been helpful if the deceased had been able to leave funeral and burial instructions as it would have minimised disagreement between the daughters.90

 

Conclusion

  1. 3.57 Funeral and burial disputes are driven by different belief and value systems, personal interests, family dynamics and grief. Moreover, society’s reluctance to talk about death prevents people from working through their differences before they die.
  2. 3.58 The Commission is of the view that, if implemented, the Commission’s proposed legislative regime for leaving funeral and burial arrangements and/or appointing a funeral and burial agent would encourage people to talk about death and take advantage of the legal avenues available to them.
  3. 3.59 The Commission’s reasons for supporting the establishment of this regime are explained more fully in Chapter 5, and the details of the regime are set out in Chapter 6.

 

 

Footnotes

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