3. Funeral and burial instructions in the common law

Introduction

  1. 3.1 The position of Australian courts in relation to funeral and burial instructions is well 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 unreasonable3 or exercised in a way that prevents family and friends from reasonably and appropriately expressing affection for the deceased.4
  2. 3.2 However, in a small number of cases, a person’s wishes regarding the disposal of their body have been taken into account by Australian courts when deciding who should have the right to dispose of the body, effectively ensuring the deceased’s wishes were carried out.
  3. 3.3 Canadian and English courts follow a similar approach to Australian courts. In contrast, New Zealand courts require the person with the right to dispose of the body to take into account the views of the deceased, the views of family members and the deceased’s cultural or religious background before making appropriate funeral and burial arrangements.5 Courts in the United States have taken another approach altogether, upholding the primacy of the wishes of the deceased against all others.6
  4. 3.4 This chapter reviews the common law in Australia and other jurisdictions.

Australia

Funeral and burial instructions

  1. 3.5 A person has no right to control the final disposal of their body, other than by choosing an executor who then has, subject to limited exceptions, an absolute right to decide how the body shall be disposed of.7 The reason for this is that there is no property in a dead body (the ‘no property’ rule).8 As Justice Kay held in Williams v Williams, ‘If there be no property in a dead body it is impossible that by will or any other instrument the body can be disposed of’.9

Selecting the right holder

Executor rule

  1. 3.6 Where the deceased has named an executor in their will, the executor has the right to dispose of the body.10 In most cases, this arrangement is not challenged and the courts do not become involved. Where the executor is not ready, willing or able to arrange for the final disposal, the court may decline to grant the right of disposal to the executor named in the will.11 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.12

Likely administrator rule

  1. 3.7 Where the deceased has not left a will, the right of disposal goes to the administrator of the deceased’s estate.13 As it is rare for an administrator to be chosen prior to the disposal of the deceased, the court will grant the right of disposal to the person most likely to be awarded the right to administer the estate.14 The administrator, and hence the likely administrator, may be passed over if they are of bad character or otherwise unfit to act.15
  2. 3.8 In Victoria and Western Australia, the order of priority for administration is governed by common law.16 In all other states and territories, the order is governed by statute.17 At common law, the order of priority is:
  • spouse of the deceased18
  • children of the deceased19 or, if the children are not yet 18 years old, the children’s guardian20
  • adoptive parents of the deceased21
  • biological parents of the deceased22
  • foster parents of the deceased23
  • extended family of the deceased24
  • householder of the premises in which the deceased passed away.25
  1. 3.9 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’.26 This is so that a prompt burial takes place,27 and family and friends of the deceased have the opportunity to attend the funeral.28

Other material factors

  1. 3.10 More recently, the likely administrator rule has been described as ‘the usual approach’,29 ‘not an inflexible rule’,30 and ‘a sensible, practical prima facie test’.31 This has allowed the courts to consider other material factors when deciding who has the right to dispose of a body.
Cultural factors
  1. 3.11 In the South Australian case of Jones v Dodd, the court determined that the deceased’s father had the right to dispose of the deceased, and not the likely administrator, who was the mother of the deceased’s minor children.32 Despite conflicting evidence as to whether the deceased had abandoned his Aboriginal cultural beliefs and converted to Christianity,33 the court released the body to the father of the deceased in accordance with Aboriginal tradition.34 Justice Perry, with whom Justices Millhouse and Nyland agreed, said:

In my opinion, proper respect and decency compel the courts to have some regard to what Martin J [in Calma v Sesar] refers to as ‘spiritual or cultural values’, even if the evidence as to the relevance of such considerations in a particular case may be conflicting.35

  1. 3.12 In the Victorian case of Dow v Hoskins, Justice Cummins held that the court may consider cultural factors where they ‘substantially arise on the evidence before the court’.36
  2. 3.13 Although the deceased in Jones v Dodd and in Dow v Hoskins died without an estate and therefore it was unlikely that an application for administration would be made,37 it has since been held in the Victorian case of Keller v Keller, where there was an estate, that cultural and religious factors should be considered where ‘the attitude of the deceased to such issues is not substantially in dispute’.38
  3. 3.14 In contrast, in New South Wales, Justice Harrison was of the view that although culture was relevant, taking it into account when determining who should have the right to dispose of the body ‘impermissibly enlarge[s] the range of potential considerations beyond matters of practicality, particularly in circumstances where the merits are otherwise evenly balanced’.39
Wishes of the deceased
  1. 3.15 There have been a few cases in which the wishes of the deceased have been considered when determining who should hold the right of disposal.40 In one of these cases, the wishes of the deceased regarding the disposal of their body played an important role in the court’s decision to award the right of disposal to someone other than the likely administrator.41
  2. 3.16 The deceased in the Queensland case of Frith v Schubert was an Aboriginal man who had been adopted.42 As the adoption had not been formalised, the family with whom he had spent most of his life had no claim to administer the estate. The adoptive brother and current partner of the deceased successfully applied for a limited grant of letters of administration in order to bury his body.43 The deceased’s ex de facto spouse, who was the mother of his children, applied to the court to have the order set aside so that she could bury the deceased in a family plot in accordance with Aboriginal tradition. The applicant was supported by the deceased’s biological father.
  3. 3.17 Although the statutory administrator hierarchy favoured the ex de facto spouse as the mother of the deceased’s minor children, Justice Lyons decided in favour of the adoptive brother. In doing so, he gave substantial weight to the fact that the deceased had told his adoptive brother on a number of occasions that he wished to be buried next to his adoptive parents.44 In determining the deceased’s wishes in the face of conflicting evidence, Justice Lyons also considered lifestyle and relationship factors, such as the deceased’s close relationship with his adoptive family, his plans to purchase property near his adoptive family and the fact that he had had little contact with his biological family.45
Nature of the right
  1. 3.18 The right holder has the right to dispose of the body and the accompanying right to possess the body for the purpose of disposal.46 The right holder has sole discretion as to how the body may be disposed of, subject to the requirements that they not exercise their discretion unlawfully,47 unreasonably48 or in a way that would prevent family and friends from expressing their affection for the deceased in a reasonable and appropriate manner.49
  2. 3.19 In Robinson v Pine Grove Memorial Park Ltd, Chief Judge Waddell confirmed that ‘an executor has a right to possession of the ashes of a deceased who has been cremated to direct how they shall finally be disposed of’, noting that this was particularly the case where the executor intends to act in accordance with the wishes of the deceased.50
  3. 3.20 As stated in Chapter 2, 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.51

Canada

  1. 3.21 The common law governs funeral and burial instructions in a number of Canada’s provinces.52
  2. 3.22 In Hunter v Hunter, Justice McEvoy cited Williams v Williams (the seminal English case discussed at [3.26]–[3.28]) before finding 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 the disposal.53
  3. 3.23 In Hunter v Hunter, 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 by a Roman Catholic priest 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 where she would later be buried.54 Instead the deceased was buried in a Protestant cemetery, in accordance with the son’s wishes.55
  4. 3.24 More recently, in Saleh v Reichert, Justice Bell considered the executor rule in the context of a deceased Muslim woman who had asked to be cremated when she died. 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.56
  5. 3.25 Justice Bell found in favour of the husband. As the administrator he had the duty to dispose of her body and the right to determine the method of disposal, provided that the remains were disposed of in a ‘decent and dignified fashion’.57 Justice Bell concluded that:

[T]he expressed wishes of a person as to the disposition of his or her body cannot be enforced in law. Nevertheless, there is nothing to prevent an executor or administrator, on whom the duty falls to dispose of the remains, from carrying out the deceased’s lawful wishes concerning the disposal of his or her body.58

England

  1. 3.26 The seminal English case, upon which the common law in Australia, Canada and New Zealand also rests, is Williams v Williams.59
  2. 3.27 The deceased in Williams v Williams had instructed his executors in his will to give his body to his friend so that she could dispose of him in accordance with a private letter he had given her, and to reimburse her for the costs of his disposal. The letter asked that his friend cremate his body, although it was unclear whether cremation was legal in England at the time. As the deceased’s wife and son had instead chosen to bury him in unconsecrated ground in their local cemetery, his friend had the body exhumed under the pretext of moving it to consecrated ground, before taking it to Italy to have it cremated in accordance with Italian law. When the friend asked to be reimbursed for her expenses, the executors refused.60
  3. 3.28 In finding in favour of the executors, Justice Kay held that ‘It is quite clearly the law of this country that there can be no property in the dead body of a human being’.61 It follows that a person cannot leave binding instructions regarding the disposal of their body.62 While it also follows that an executor does not own the body they are obliged to dispose of, they nonetheless have the right to possess the body until it is properly buried.63
  4. 3.29 The relevance of the deceased’s wishes in determining who should be awarded the right to dispose of their body was recently considered in Borrows v HM Coroner for Preston.64Following 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.65
  5. 3.30 While the hierarchy of administrators favoured the boy’s mother over the boy’s uncle,66 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.67 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.68
  6. 3.31 On the relevance of the deceased’s wishes, Justice Cranston said:

One thing is clear, that in as much as our domestic law says that the views of a deceased person can be ignored it is no longer good law … It is quite clear from the jurisprudence of the European Court of Human Rights that the views of a deceased person as to funeral arrangements and the disposal of his or her body must be taken into account … [I]n this type of case a person’s wishes can be regarded as a special circumstance …69

New Zealand

  1. 3.32 The right to dispose of a body and the wishes of the deceased in relation to their disposal were recently considered by New Zealand’s highest court in Takamore v Clarke.70
  2. 3.33 Upon the death of a man of Maori descent, his partner of 20 years, who was not Maori, decided to bury his body in a cemetery close to her and their children. The deceased’s birth family objected, wanting the body buried in their homeland, next to the deceased’s father and ancestors. While discussions with the deceased’s partner about the place of burial were ongoing, the deceased’s birth family took the body and buried it in accordance with their wishes.
  3. 3.34 The deceased’s partner applied for an order to exhume the body arguing that, as the executor of the deceased’s will, she had the right to dispose of his body. The deceased’s sister, mother and brother argued that as the deceased was Maori, Maori customary law should apply in place of the common law.71
  4. 3.35 All five judges of the Supreme Court held that the deceased’s partner had the right to dispose of the body, but for different reasons. The majority (Justices McGrath, Tipping and Blanchard) found that the executor and likely administrator rules exist in New Zealand72 and that they come into effect when nothing is done to dispose of a body or when a dispute arises.73
  5. 3.36 When deciding how to dispose of a body, the person with the right to dispose of it should consider the views of the deceased, the views of family members and the deceased’s cultural or religious background.74 The right holder does not have to seek out this information but should consider it where it is made known to them.75 The right holder may also have regard to the practicalities of achieving burial or cremation without undue delay.76
  6. 3.37 The judges observed that this approach ‘allows a range of values to be weighed without presuming, in advance, which cultural position will prevail, while also ensuring that decision making will be expeditious for reasons of public health and decency’.77
  7. 3.38 The majority rejected the argument that the court should not interfere with the right holder’s discretion unless exercised improperly, capriciously or wholly unreasonably,78 instead finding that an aggrieved party may ask the court to review the appropriateness of the right holder’s decision.79 Where this happens, the court must:

address the relevant viewpoints and circumstances and decide, making its own assessment and exercising its own judgment, whether an applicant has established that the decision was not appropriate.80

  1. 3.39 In her minority judgment, Chief Justice Elias found that the executor rule does not apply in New Zealand81 and that previous judgments to the contrary were out of step with modern expectations concerning human rights, the importance of cultural values and the public interest.82 After observing that granting a right to dispose of a body to a primary decision maker is inconsistent with the ‘no property’ rule,83 Chief Justice Elias stated that the responsibility of burial is a shared responsibility that should be exercised by close family members in accordance with the circumstances.84 Where there is a dispute, the parties should ask the court to decide who should have the right to dispose of the body.85
  2. 3.40 On the relevance of the deceased’s funeral and burial wishes, Chief Justice Elias stated:

In modern conditions I think it is also unacceptable to say that the views of the deceased are views that can be ignored. Human rights are engaged because the disposal of human remains touches on matters of human identity, dignity, family, religion and culture. Disempowerment in decisions of great personal moment may be as emotionally distressing as an outcome that is contrary to religious or cultural values.86

  1. 3.41 In his minority judgment, Justice William Young also rejected the application of the executor rule in New Zealand, stating that its foundations were flimsy and that there was little logic to it.87 In relation to the latter argument, he expressed the view that an executor’s financial obligation to pay for the deceased’s burial (assuming the estate has sufficient funds) does ‘not provide a cogent basis for an executor to have a right to possession of the body against [the widow or other] close relatives who are also prepared to bury the deceased in an appropriate way’.88
  2. 3.42 However, if it could be demonstrated that the executor had been chosen by the deceased in order to carry out their funeral and burial wishes, that would ‘be of considerable and probably decisive significance’.89
  3. 3.43 Justice William Young also rejected the likely administrator rule, stating that the administrator hierarchy had been created with the proper distribution of a deceased’s estate in mind, and that its application to burial disputes was inappropriate.90 According to Justice William Young, ‘common sense suggests that a dispute as to burial should be addressed directly on its merits’.91

United States of America

  1. 3.44 Courts in the United States have established a common law right for a person to be disposed of in accordance with their wishes.

Instructions expressed in a will

  1. 3.45 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.92
  2. 3.46 In Re Eichner’s Estate, the court held that: ‘The authorities are clear … that the wishes of a decedent in respect of the disposition of his remains are paramount to all other considerations’.93 In Kasmer v Guardianship of Limner, for example, the court ordered the executor of the deceased to cremate him in accordance with his wishes, despite the executor’s religious objections to cremation.94
  3. 3.47 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.95 When ordering the deceased’s executor to carry out the deceased’s wish to be cremated in Re Johnston’s Estate, the court observed that the deceased’s instructions were reasonable, practical and capable of performance,96 thereby creating room for the argument that instructions that do not meet those criteria may not have to be carried out.

 

Instructions not expressed in a will

  1. 3.48 Where the deceased expressed their wishes 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.97 In Re Henderson’s Estate the court held that:

[A]lthough such a dispute is of a nature that no hard and fast rule may be applied alike to all cases, and that consequently the court’s decision should be controlled by the inherent equities of the particular case, having due regard to the interests of the public, the wishes of the deceased and the feelings of those entitled to be heard by reason of relationship or association, nevertheless … if considerations of propriety and decency do intervene, the [court] … should give heed to the wishes of the deceased if they can be ascertained.98

Selecting the right holder

  1. 3.49 The person with the duty to dispose of a body is the same as the person most entitled to inherit the estate of a deceased who died intestate, meaning that the duty falls upon the spouse, followed by the children, followed by the parents, etc.99 This is so regardless of whether the deceased dies with or without a will. However, where a person with the duty 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.100
  2. 3.50 As this indicates, the executor rule does not exist in the United States. In Wales v Wales, the court stated that the views of the executor regarding the deceased’s disposal carry little weight as ‘there is no necessary identity between the office and family ties’.101 In his summary of the law of dead bodies in the United States, Percival E Jackson observed that the duty to dispose of the body, the privilege of possessing the body, and the duty to pay for disposal are separate interests which may vest in different people.102

Conclusion

  1. 3.51 A review of the common law in Australia, Canada, England, New Zealand and the United States reveals three different approaches to a person’s funeral and burial instructions.
  2. 3.52 The first approach, advanced in the common law of Australia, Canada and England, allows a person with the right to dispose of a body to do so as they wish, regardless of the deceased person’s instructions.
  3. 3.53 The second approach requires the person with the right to dispose of the body to make an appropriate decision about the method and place of disposal after taking into account the deceased’s wishes, the views of family members and the deceased’s cultural or religious background. They may also take into account the need to dispose of the deceased without undue delay. This approach is found in New Zealand.
  4. 3.54 The third approach, adopted by courts in the United States, is that the deceased’s
    funeral and burial instructions must be carried out unless there is a compelling reason not to do so.


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