6. Funeral and burial instructions: Proposed legislative regime

 

Introduction

  1. 6.1 In Chapter 5, the Commission set out the key features of its proposed legislative regime on funeral and burial arrangements. The Commission stated that people should be able to leave binding funeral and burial instructions and/or appoint a funeral and burial agent. If a person does not leave instructions, the person with the right to control their funeral and burial arrangements should be allowed to make any arrangements, provided they are not unlawful or contrary to the known beliefs or values of the deceased.
  2. 6.2 In this chapter, the Commission examines its proposed legislative regime in more detail.

Foundational issues

  1. 6.3 Two important underlying issues were evident in the Commission’s consultation paper and subsequently throughout its consultations. These were what the order of priority should be for determining who is in control of a person’s funeral and burial arrangements, and what activities should fall within the scope of funeral and burial arrangements.
  2. 6.4 The Commission also asked when agents should forfeit the right to control the deceased’s funeral and burial arrangements, and who should be liable for the costs of disposal. The Commission’s conclusions in this regard are relevant to all who have control over the deceased’s funeral and burial arrangements, including those appointed as agents and those whose responsibility otherwise flows from the operation of the law.

Order of priority

  1. 6.5 Responses to the questions the Commission put to the community suggested significant changes ought to be made to the order in which people are granted authority over a deceased’s funeral and burial arrangements.

Responses

  1. 6.6 As discussed in Chapter 5, a number of community members stated that people should be able to appoint someone they trust to organise their funeral and burial. It was noted that the person you wish to dispose of your assets and the person you wish to dispose of your body might be two different people.1
  2. 6.7 Others were of the view that executors should continue to have the highest right to control the deceased’s funeral and burial because they had already been appointed by the deceased to control their affairs after their death, and appointing a separate person to control the funeral and burial might cause more confusion rather than less.2
  3. 6.8 When a person dies without a will, Professor Prue Vines suggested that the deceased’s next of kin should be given the right to control the disposal of the body instead of the deceased’s likely administrator.3 Professor Vines observed:

Many of the cases have used the Administrator as the nearest proxy, but I would argue against doing this for a procedural reason—the administrator is often not known until after court proceedings have appointed them.4

  1. 6.9 The Victorian Aboriginal Legal Service expressed the view that ‘the current intestacy law is not usually culturally or factually appropriate to many Aboriginal or Torres Strait Islander families’ because:

The current law is based on old English notions of family lineage. This is not necessarily compatible with the notions of family held by Aboriginal peoples. The legislative scheme needs to recognise and reflect the collective decision making of Aboriginal communities to ensure that decisions enshrine the views of families and communities.

  1. 6.10 Several consultees identifying as older feminist lesbians also highlighted the limitations of the next of kin hierarchy observing that it is based on a set of assumptions about familial relationships that do not apply to them.5 One person told the Commission:

My lesbian family hold much more status in my life than my brother who is homophobic and racist … In patriarchal society, he is seen as my nearest kin. He is not my nearest kin to me, my nearest kin is my lesbian community.6

Conclusions

  1. 6.11 Having concluded in Chapter 5 that people should be allowed to appoint a funeral and burial agent to control their funeral and burial arrangements, it follows that an agent appointed by the deceased should be ranked first in the order of priority for determining who should control the deceased’s funeral and burial arrangements.
  2. 6.12 Subject to the view that an agent appointed by the deceased should be ranked first, the Commission shares the views of those who emphasised the special relationship of trust between the person who makes a will and the person they appoint to administer their estate, namely their executor.7 For this reason, an executor appointed by the deceased should be ranked second in the order of priority.
  3. 6.13 As noted above, Professor Vines criticised the likely administrator rule because it can be difficult to determine who the administrator might be before a court has appointed them.
  4. 6.14 The likely administrator rule was also criticised by Justice William Young in his dissenting judgment in the New Zealand case of Takamore v Clarke. As the administrator hierarchy was created with the proper distribution of the deceased’s estate in mind, Justice William Young was of the view that its application to funeral and burial disputes was inappropriate.8
  5. 6.15 While a deceased’s likely administrator is often their next of kin, this is not always the case. Where the deceased has separated from the other parent of their child and the child is under 18, the likely administrator is the surviving parent of the child. While it makes sense to select the surviving parent to administer the deceased’s estate on behalf of and for the benefit of their child, in the funeral and burial context this means that the deceased’s ex-partner is given control over the deceased’s funeral and burial arrangements.
  6. 6.16 In at least two cases in which the likely administrator was the surviving parent of the deceased’s children, and thus the ex-partner of the deceased, the courts have awarded control over the body to another family member.9
  7. 6.17 In the South Australian case of Jones v Dodd, the court determined that the father of the deceased had a better claim to dispose of the deceased’s body than the mother of the deceased’s minor children.10 In reaching this decision, the court held that the likely administrator test is not a rigid principle of law, and that ‘proper respect and decency compel the courts to have some regard to … “spiritual or cultural values”’.11 Despite conflicting evidence regarding the deceased’s adherence to Aboriginal custom, the court awarded the body to the deceased’s Aboriginal father who wished to bury the deceased on country.12
  8. 6.18 In the Queensland case of Frith v Schubert, the court determined that the adoptive brother13 of the deceased should be granted letters of administration for the purpose of disposing of the deceased’s body instead of the mother of the deceased’s minor children.14 In reaching this decision, Justice Lyons gave substantial weight to the fact that the deceased had told his adoptive brother that he wished to be buried next to his adoptive parents.15 He 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 his lack of contact with his biological family.16
  9. 6.19 Parliament has addressed the issue of the lack of capacity of minors to make decisions with respect to a deceased’s body or remains by awarding the body to the highest ranked adult next of kin. In the Coroners Act 2008 (Vic), for example, the deceased’s ‘senior next of kin’ is their partner, followed by a child over the age of 18 years, followed by a parent, followed by a sibling over the age of 18 years, and so on.17
  10. 6.20 Placing the likely administrator in charge of the deceased’s funeral and burial arrangements in the event that the deceased did not appoint an agent or executor might result in unsatisfactory appointments. The more appropriate appointee in this situation is the highest ranked adult next of kin who is willing and able.
  11. 6.21 The Commission acknowledges the concerns of community members that the next of kin hierarchy most commonly found in our legal system is based on assumptions that do not hold true for everybody.18 This has been addressed in the Coroners Act 2008 (Vic) by requiring a coroner to take cultural considerations into account when determining whether the deceased’s body should be released to their senior next of kin.19
  12. 6.22 However, in the context of funeral and burial arrangements, it is not necessary to embed cultural considerations particular to the deceased in the next of kin hierarchy. Under the Commission’s proposed legislative regime, people who did not want their next of kin under the Act to organise their funeral and burial could appoint an agent of their choosing. This is one of the primary reasons the Commission supports the creation of the role of funeral and burial agent.
  13. 6.23 Where a person dies without an agent, executor or adult next of kin who is willing and able to make their funeral and burial arrangements, any person close to the deceased immediately before their death should be able to control their funeral and burial arrangements. This is consistent with the next of kin hierarchy in the Coroners Act 2008 (Vic).20
  14. 6.24 This should be followed by any person who is willing and able to control the arrangements, provided it is appropriate for them to do so. For example, a distant relative or family friend who abused the deceased as a child may wish to control the deceased’s funeral and burial arrangements, but it would be inappropriate for them to do so.
  15. 6.25 As discussed in more detail in Chapter 8, the Coroners Act 2008 (Vic) stipulates that where two or more people apply to receive the body from the coroner, the coroner should return the body to the deceased’s executor or, if there is no executor, to their senior next of kin.21 Under the Commission’s proposed legislative regime, this should be amended so that the coroner recognises the superior claim of a funeral and burial agent appointed by the deceased.

Recommendations

  1. 2 The person with the right to control the funeral and burial arrangements of the deceased should be determined in accordance with the following order of priority:

a) a funeral and burial agent appointed by the deceased

b) the executor of the deceased’s will

c) the deceased’s senior adult next of kin who is willing and able

d) a person close to the deceased immediately before their death

e) any other person who is willing and able to arrange the funeral and burial of the deceased, provided it is appropriate for them to do so.

  1. 3 The Coroners Act 2008 (Vic) should be amended so that a deceased’s funeral and burial agent has the highest claim to receive the body in the event that two or more people apply to the coroner for the release of the body.

 

 

 

 

 

 

 

 

 

 

 

 

 

Activities that fall within the scope of funeral and burial arrangements

  1. 6.26 Determining which activities fall within the scope of funeral and burial arrangements under the proposed Act impacts on the activities a person is able to dictate through their funeral and burial instructions as well as the activities the person with the right to control the funeral and burial arrangements has authority over.
  2. 6.27 In its consultation paper, the Commission defined funeral and burial instructions as ‘instructions regarding the place and method of the final disposal of a dead body, and any associated rituals’.22
  3. 6.28 At common law, the executor or likely administrator has the right to dispose of the body of the deceased, and to possess the body for that purpose.23 They also have the right to dispose of the remains of the deceased.24
  4. 6.29 The courts have considered what constitutes funeral services in cases that concerned the capacity of the executor to recover expenses for such services from the estate and in cases in which the family of a deceased sought to recover expenses for such services from the person responsible for the deceased’s death.25
  5. 6.30 In the South Australian case of Public Trustee v Bednarczyk, Justice Mayo observed:

The word ‘funeral’ is usually taken to comprehend the disposal of human remains, including accompanying rites and ceremonies, that is to say, the procedure of, and appertaining to, burial or cremation, in the course of which the body is prepared for burial and conveyed by cortege to the necropolis. Such initial stages as acquisition of burial plot, public notice, obtaining a certificate of death, permission to cremate or bury, will form part of the procedure and the cost will be funeral expenses.26

  1. 6.31 While Justice Mayo stated that ‘tombstones are not ordinarily treated as falling within the phrase [i.e. funeral expenses]’,27 in the New South Wales case of Smith v Tamworth City Council Justice Young held: ‘The reasonable cost of a reasonable headstone is recoverable from the estate.’28
  2. 6.32 In Ryan v Anaru, Judge Stone determined that a wake or funeral meal after a requiem mass and burial should not be regarded as a funeral expense.29

Responses

  1. 6.33 A review of the disputes recounted to the Commission reveals that people care deeply about the disposal of the body, the disposal of remains, rituals associated with the disposal of the body and/or remains, and memorialisation.
Disposal of the body
  1. 6.34 Most of the disputes recounted to the Commission concerned whether the deceased should be buried or cremated.
  2. 6.35 In one case, the deceased had clearly stipulated that they wanted to be buried, in part because of their fear of cremation. While the executor of the deceased’s will wanted to adhere to the deceased’s wishes, some of the deceased’s family members favoured cremation as it would have been more cost effective. The matter was mediated and the deceased was eventually buried.30
  3. 6.36 Another dispute involved a deceased adult child who was born to parents with different religious beliefs. The father, who was Muslim, wanted to bury the deceased in accordance with Islamic tradition, whereas the mother, who was not Muslim, wanted to cremate the deceased.31 The mother successfully sought an injunction in court to stop the burial, and the deceased was cremated.32
  4. 6.37 Yet another dispute involved a woman who had died from cancer. Her daughter had cared for her during her illness and believed her mother wanted to be cremated. However, the deceased’s partner at the time of her death wished to bury the deceased. The daughter and the partner could not agree. As the partner paid for the funeral, the deceased was buried.33
 
Disposal of remains
  1. 6.38 Other disputes recounted to the Commission concerned the disposal of the deceased’s ashes.
  2. 6.39 One woman had told her children on a number of occasions that she wanted to be cremated and have her ashes scattered ‘somewhere beautiful’. Shortly before her death, the woman remarried. While her husband agreed to cremate her body, he refused to relinquish the ashes so they could be scattered in accordance with her wishes. The husband has since remarried and the deceased’s children do not know where their mother’s ashes are.34
  3. 6.40 Another dispute about ashes involved the deceased’s husband and the deceased’s father. The father, who was also the executor of his daughter’s estate, collected his daughter’s ashes after telling the crematorium that his son-in-law was too distressed to collect them.35 The father then declined to give the ashes to the husband so that the husband could scatter them in accordance with the wishes the deceased had left in her will. The person who recounted this story to the Commission was of the view that the husband’s inability to carry out his wife’s wishes with regard to her ashes had left him unable to obtain closure and move forward.36
  4. 6.41 The Commission was told that although cremation has not traditionally been practised by Aboriginal people, it has become more common in recent years as it enables some of the ashes of the person who has passed to be scattered on country, while leaving the rest for their partner and/or children.37
Rituals associated with disposal
  1. 6.42 Many people felt strongly about rituals associated with the disposal of the body and remains. These rituals included washing,38 dressing39 and viewing40 the deceased; praying for the deceased before or after disposal;41 holding a funeral;42 and placing the body in a particular type of casket43 or in none at all.44
  2. 6.43 One dispute recounted to the Commission involved a ‘staunch atheist’ who was given a religious funeral by their executor despite their philosophical beliefs and the objections of family members.45
  3. 6.44 For those in the LGBTI community, rituals associated with disposal can be particularly harmful when carried out in ways that deny the deceased’s ‘true self’.46 Many people recounted incidents of estranged and hostile family members stepping in at the time of a person’s death and making funeral arrangements contrary to the deceased’s wishes.
  4. 6.45 In one case, a deceased gay man was given a religious funeral in a church with a reading from the Bible that was critical of the deceased’s ‘disobedient’ lifestyle.47 In another case, a deceased transgender woman was dressed as a male and only referred to by her male birth name at the funeral.48
  5. 6.46 Another dispute recounted to the Commission involved the non-Muslim wife of a deceased man and the deceased’s Muslim birth family. Despite the fact that the deceased had told his wife that he wanted to be cremated, his birth family opposed his wishes upon his death.49 A faith leader was contacted by the birth family and it was agreed that the faith leader would hold the deceased’s body on trust for the wife; returning it to her for final disposal after the birth family performed Islamic funeral rituals on the body.50
Memorialisation
  1. 6.47 A number of disputes indicated that people feel strongly about how they should be memorialised.
  2. 6.48 The Commission was told of a case in which a lesbian asked for a statue of Buddha to be placed on her grave. Her ex-partner, whom she had named as her executor in her unsigned will, installed the statue along with rosemary and lavender bushes. A year after the death, the ex-partner visited the grave. She found that the deceased’s parents, who had been estranged from the deceased for decades at the time of her death, had instead placed a large slab of black granite over the grave with crosses on it.51
  3. 6.49 In another case, a deceased transgender woman’s friends expressed concern that her male birth name was likely to have been placed on her headstone, rather than the name she had chosen for herself.52
  4. 6.50 Executors and likely administrators told the Commission that they considered that they should have the right to control memorialisation, notwithstanding the fact that they were not the right of interment holder. Disputes of this kind often involved a deceased with many children, one of whom was the executor or likely administrator, and another of whom was the right of interment holder.53
  5. 6.51 The Cemeteries and Crematoria Association of Victoria, the Geelong Cemeteries Trust and a community member expressed support for maintaining the current distinction between the executor or likely administrator’s right to control the funeral and burial of the deceased, and the right of interment holder’s right to control burial and memorialisation insofar as it relates to their plot.54

Conclusions

  1. 6.52 Each of the funeral and burial activities considered above may be of profound importance to people. Being returned to country may be the most important element of an Aboriginal person’s funeral and burial. Being buried, and thereby not cremated, may be particularly important to a Jewish or Muslim person. Not having a religious funeral may be of great significance to a person who has rejected the religion of their birth family. Determining which name appears on their headstone may be of paramount importance to a transgender person.
  2. 6.53 Accordingly, the Commission is of the view that people should be able to leave instructions about:
  • the rituals associated with the disposal of their body and/or remains
  • the disposal of their body
  • the disposal of their remains
  • memorialisation at the site of their body or remains.
  1. 6.54 Correspondingly, the Commission considers that the person with the right to control the deceased’s funeral and burial arrangements should be responsible for making decisions about rituals associated with the disposal of the deceased’s body and/or remains, the disposal of the body, the disposal of remains and memorialisation at the site of the body or remains. They should also have the right to possess the body and remains for that purpose.
  2. 6.55 Although the Commission’s definition does not differ markedly from the common law definition, it includes memorialisation, which has been excluded by most courts, though not by Justice Young in Smith v Tamworth City Council.55
The right of interment holder
  1. 6.56 As discussed in Chapter 7, the law on cemeteries and crematoria states that the right of interment holder, who is usually the person who paid for the burial plot,56 may decide who is buried in their plot and how that person is memorialised.57
  2. 6.57 This means that if the executor or likely administrator and the right of interment holder are two different people, the right of interment holder may prevent the executor or likely administrator from burying the deceased in their plot. Or, if the right of interment holder allows the executor or likely administrator to bury the deceased in the right of interment holder’s plot, the right of interment holder may prevent the executor from memorialising the deceased in the manner they wish.
  3. 6.58 The law governing cemeteries and crematoria, including memorialisation at a grave site in a public cemetery, was enacted to ensure human remains are treated with dignity and respect, and that cemetery trusts are able to achieve this end in an effective and efficient manner.58 It is neither appropriate nor necessary for the law on funeral and burial arrangements to undermine this pre-existing legislative regime.
  4. 6.59 The deceased could ensure that the person with the right to control their funeral and burial arrangements was also the right of interment holder by purchasing the right before they died and leaving it to the person with the right to control their funeral and burial arrangements in their will. Or the person with the right to control the funeral and burial arrangements could purchase the plot upon the death of the deceased.

 

Recommendations

  1. 4 Funeral and burial instructions should be defined as directions that a person clearly intends to have carried out after their death and that relate to:

a) rituals associated with the disposal of their body and/or remains

b) the disposal of their body

c) the disposal of their remains and/or

d) memorialisation at the site of their body or remains.

  1. 5 The person with the right to control the funeral and burial arrangements of the deceased should:

a) be responsible for making decisions that relate to:

  1. (i) rituals associated with the disposal of the body and/or remains
  2. (ii) the disposal of the body
  3. (iii) the disposal of remains and
  4. (iv) memorialisation at the site of the body or remains, and

b) have the right to possess the body and remains for those purposes.

 

Forfeiting the right to control funeral and burial arrangements

  1. 6.60 In jurisdictions in the United States, a person’s funeral and burial agent will forfeit the role if they are dead, lack legal capacity, refuse to act or are separated or estranged from the deceased.59 In some states, the agent will forfeit the role when arrested60 or charged61 with the murder or manslaughter of the deceased.
  2. 6.61 The Commission asked community members to comment on the circumstances in which an agent should forfeit the appointment in Victoria.

Responses

  1. 6.62 Several submissions nominated circumstances in which an agent should forfeit the appointment. These include when an agent:
  • fails to carry out the funeral and burial in a timely manner62
  • refuses to carry out the deceased’s instructions63
  • acts in a manner contrary to the legislation on funeral and burial arrangements64
  • is incapable of carrying out the instructions because they are overseas,65 ill,66 incarcerated,67 subject to a control order,68 subject to a guardianship order,69 or incapacitated for any other reason70
  • engages in fraudulent activity in relation to the funeral and burial arrangements71
  • is bankrupt72
  • incurs unnecessary or frivolous costs73
  • is investigated for causing the death of the deceased74
  • is discharged from acting by court order.75
  1. 6.63 The Victorian Aboriginal Legal Service proposed that an agent forfeit their appointment if they receive a direct or indirect financial benefit.76 Similarly, the Greater Metropolitan Cemeteries Trust favoured forfeiture where ‘the agent is acting in a manner that is to their personal pecuniary advantage to the exclusion of other interested parties’.77 A community member stated that an agent should forfeit the appointment where they have a ‘conflict of interest’.78
  2. 6.64 Anne Cregan, Special Counsel, Gilbert + Tobin, told the Commission about the high uptake of exploitative funeral insurance schemes in Aboriginal communities, labelling it ‘the single biggest consumer issue for Aboriginal people’.79 Dwayne Atkinson, Emergency Relief Coordinator, Rumbalara Aboriginal Co-operative, and Kaz Gurney, Managing Lawyer, Goulburn Valley Community Legal Centre, also expressed their concerns about this issue.80
  3. 6.65 In addition, the Victorian Aboriginal Legal Service proposed that an agent forfeit the appointment where ‘the agent’s family connections mean there is a risk that the agent’s decisions are biased in favour of one family or one cultural group over another’.81

Conclusions

  1. 6.66 After the death of the deceased, it may not be appropriate for the agent to continue to control the funeral and burial arrangements. The Commission concludes that the agent should forfeit their right to control the funeral and burial arrangements of the deceased where they:
  • lack legal or physical capacity
  • are unwilling to act
  • fail to carry out the funeral and burial within a reasonable period of time
  • act in a manner that is contrary to the proposed legislative regime
  • act in any other manner that the court considers makes it inappropriate for them to retain the right.
  1. 6.67 The Commission has not included people who, in the event of a dispute, might be perceived to have a conflict of interest because of their allegiance to one of the parties to the dispute, as this is the very reason why someone might appoint an agent.
  2. 6.68 The Commission considered whether an agent who is declared bankrupt should forfeit the right to control the deceased’s funeral and burial arrangements. Though the bankruptcy of an executor may be considered by the court in relation to a grant of probate,82 the Commission considers that an agent’s bankruptcy should not be a barrier to controlling a deceased’s funeral and burial arrangements.83
  3. 6.69 Controlling a person’s funeral and burial arrangements is different from the execution of duties as an executor under a grant of probate. The right to control the funeral and burial arrangements of the deceased does not carry with it the same risk of financial mismanagement.
  4. 6.70 The Commission also considered whether an agent should forfeit their right to act where a deceased had appointed their then partner or close family member as their agent, but at the time of their death they were separated or estranged from that person. The Commission is of the view that a person may still want their former partner or estranged family member to control their funeral and burial arrangements.
  5. 6.71 This may be the case where a couple with children under 18 has separated, and each adult considers that, in the event of their own death, the ex-partner is best placed to organise a funeral and burial that centres the needs of their children. It may also occur where a single adult child and their sole remaining parent are estranged, but in the event of the child’s death, the parent is the best placed person to organise the funeral and burial.
  6. 6.72 If a person in this situation did not want their former partner or estranged family member to retain control over their funeral and burial arrangements, they would need to revoke the appointment during their lifetime.
  7. 6.73 Alternatively, if the separation or estrangement were particularly acrimonious and the agent refused to allow the next person in the order of priority to take up the right, a family member could petition the court to override the appointment on the ground that it would be inappropriate to allow them to retain the right.84
  8. 6.74 Another scenario in which the court might be of the view that it would be inappropriate for an agent to retain control over the deceased’s funeral and burial arrangements is where the agent was responsible for the death of the deceased. Even then, however, it would depend on the circumstances. The court might reach one conclusion in relation to an agent who was charged with the murder of the deceased, and another in relation to an agent who was charged with culpable driving causing death.
  9. 6.75 Having determined that funeral and burial agents should forfeit their right to control the deceased’s funeral and burial arrangements in the circumstances listed above, the Commission concludes that these requirements should also apply to any person identified
    as having the right to control the deceased’s funeral and burial arrangements, namely, the deceased’s executor, senior adult next of kin, and subsequent relevant people.
  10. 6.76 Where an executor forfeits their right to control the deceased’s funeral and burial arrangements under the Commission’s proposed legislative regime, the forfeiture should relate only to control over the arrangements, and not to their role as executor more broadly.
  11. 6.77 The Commission also concludes that an agent should be a natural person over the age of 18 years, and that they should not be able to obtain financial compensation for any time or effort expended as an agent. This is to ensure that people and organisations do not use the role of funeral and burial agent to exploit individuals planning their funeral and burial by obtaining an unfair financial benefit from the appointment. An agent may still seek reimbursement for the actual costs of the funeral and burial arrangements.

Recommendations

  1. 6 The person with the right to control the funeral and burial arrangements of the deceased should forfeit that right if they:

a) lack legal or physical capacity

b) are unwilling to act

c) fail to carry out the funeral and burial within a reasonable period of time

d) act in a manner that is contrary to the proposed legislative regime or

e) act in any other manner, before or after the death of the deceased, which the court considers makes it inappropriate for them to retain the right.

  1. 7 Only a natural person over the age of 18 years should be eligible for appointment to the role of funeral and burial agent.
  2. 8 A funeral and burial agent should be prohibited from receiving a financial reward for acting as the agent.

 

 

 

Costs

  1. 6.78 At common law, the person with the right to control disposal is entitled to be reimbursed by the deceased’s estate for the reasonable costs of disposal, which are determined in accordance with the size of the deceased’s estate and the deceased’s position in life.85
  2. 6.79 This entitlement to reimbursement applies also to a stranger who intervenes as a matter of necessity to dispose of the body without the knowledge of the person with the right to control disposal.86
  3. 6.80 As the person with the right to control the estate and the person with the right to dispose of the body is the same person, namely, the executor or likely administrator, that person is well placed to determine what the size of the deceased’s estate might be.
  4. 6.81 Allowing people to appoint a funeral and burial agent would disrupt this symmetry. As such, the Commission asked community members who should be liable for the costs of disposal and what, if any, measures are needed to make the arrangement practical.

Responses

Who should be liable
  1. 6.82 Most submissions stated that the deceased’s estate should be liable for the costs of disposal.87 If the deceased’s estate had insufficient funds, it was suggested that the deceased’s family88 or the government should be liable for the costs of disposal.89
  2. 6.83 Some submissions proposed that the deceased should pay for their own funeral and burial arrangements during their lifetime,90 and that this could be achieved by purchasing a pre-paid funeral plan,91 purchasing funeral insurance92 or otherwise setting aside funds.93
  3. 6.84 One submission suggested that the person with the right to control disposal should be liable for the costs and that, if this were to occur, disposal should only be allowed in public cemeteries and crematoria.94 Another suggested that the person with the right to control disposal should be liable for the costs where the deceased had failed to set aside funds during their lifetime.95
What should they be liable for
  1. 6.85 A number of people told the Commission that the estate should continue to be liable for the reasonable costs of disposal.96
  2. 6.86 Several people expressed concern that individuals might leave outlandish or extravagant instructions that would consume a disproportionate amount of their estate.97 This was problematic for some because it was felt that it was wrong to deprive potential beneficiaries of an inheritance.98
  3. 6.87 Another person suggested that funeral and burial costs should be capped at a particular amount, meaning that the government would not allow people to spend more than the prescribed amount.99

Conclusions

  1. 6.88 Once it is accepted that a person should be able to leave binding funeral and burial instructions, a further question arises, namely, whether any limit should be imposed on the liability of the estate with respect to the costs of carrying out the deceased’s instructions.
  2. 6.89 As earlier stated, the Commission concludes that the activities a person should be able to direct through their instructions are rituals associated with the disposal of their body and/or remains, the disposal of their body, the disposal of their remains, and/or memorialisation at the site of their body or remains.100
  3. 6.90 The Commission also considers that the instructions need not be carried out if the estate might be insufficiently large to cover the reasonable costs of their implementation.101
  4. 6.91 The Commission considered whether the deceased should be able to rely on their estate to cover the costs of extravagant funeral and burial instructions, or whether the liability of the estate should be limited to what is reasonable, having regard to the size of the estate and other relevant circumstances.
  5. 6.92 In favour of the former position, it may be said that the estate belonged to the deceased; accordingly, it was the deceased’s prerogative to say how much of the estate should be devoted to funeral arrangements. The matter is one of freedom of testation. As Justice Callaway observed of that freedom in Grey v Harrison:

it is one of the freedoms that shape our society, and an important human right, that a person should be able to dispose of his or her property as he or she thinks fit. Rights and freedoms must, of course, be exercised and enjoyed conformably with the rights and freedoms of others, but there is no equity as it were, to interfere with a testator’s dispositions unless he or she has abused that right …102

  1. 6.93 However, there are powerful considerations weighing in favour of the second position, namely that the estate should only be liable for the costs of carrying out arrangements that are reasonable having regard to the size of the estate and other relevant circumstances. Those considerations involve the claims of creditors and potential family provision claimants under Part IV of the Administration and Probate Act 1958 (Vic).103
  2. 6.94 Under the present law, the executor determines the funeral and burial arrangements that will be put in place and it follows that the arrangements will entail nothing more than a reasonable impost on the estate. Of course, the funeral arrangements will need to be attended to promptly and the cost of them will, presumably, need to be met with similar promptness. This approach should not adversely affect creditors generally or potential family provision claimants.
  3. 6.95 When the executor applies for probate, an advertisement for creditors is placed in accordance with the requirements of the Trustee Act 1958 (Vic).104 A response period of not less than two months is contained in the notice. If a creditor does not respond within the response period set out in the notice, the executor may distribute the estate taking into account only debts and liabilities of which there was notice at the time of the distribution.
  4. 6.96 Under the Administration and Probate Act 1958 (Vic), a family provision applicant may institute a proceeding against the estate within the period elapsing six months after a grant is made to the executor or administrator by the Court.105 An executor or administrator who makes a beneficial distribution of estate assets prior to the expiration of that period does so at their own personal risk.106
  5. 6.97 The question is how creditors’ rights and claimants’ rights to proceed for family provision may be preserved and maintained. These rights do not sit well with a position that would, in the name of freedom of testation, allow a person to direct any funeral and burial arrangements, no matter how extravagant, provided the estate was sufficiently large to pay for them at the time of death.
  6. 6.98 In the Commission’s view, there can be no reasonable reconciliation. The person with the right to control the funeral and burial arrangements of the deceased will have to act quickly upon death. That person, at that time, may have no idea of the size of estate debt or of the existence of potential claimants for family provision.
  7. 6.99 The Commission’s view is that, in order to preserve the rights of creditors and the like, the estate should only be liable for the reasonable costs of carrying out the funeral and burial arrangements of the deceased. What is reasonable should be determined by reference to the size of the estate and other relevant circumstances.
  8. 6.100 The Commission’s formulation of the test for the recovery of funeral and burial costs from the deceased’s estate is wider than the common law test. While the common law remains unsettled on whether the cost of memorialisation forms part of the funeral expenses that can be recovered from the estate, the Commission’s formulation includes the cost of memorialisation.
  9. 6.101 In accordance with Justice Young’s finding that ‘The reasonable cost of a reasonable headstone is recoverable from the estate’,107 the Commission is of the view that the reasonable costs of memorialisation would ordinarily be limited to the costs of a simple plaque or headstone, not a crypt or monument. However, an assessment would have to be made in accordance with the facts of a given situation.
  10. 6.102 In addition, the Commission considers that a number of relevant factors should be considered when determining what amounts to reasonable funeral and burial arrangements, not solely the deceased’s status or rank within their community.108For example, if the deceased lived and worked in Melbourne for ten years, but left instructions stating that they wished to be buried in Darwin where they were brought up and where their relatives still live, then the cost of returning the body to Darwin for burial may be considered reasonable in the circumstances.
  11. 6.103 The Commission considers that the same test for the recovery of funeral and burial costs should apply where the deceased has not left instructions.
  12. 6.104 An executor or administrator who is concerned about the reasonableness of the costs of carrying out the deceased’s funeral and burial arrangements (regardless of whether the deceased has left instructions), may wish to approach the Supreme Court to obtain the protection of a court order or direction.
  13. 6.105 Where necessary, rule 54.02 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) would allow an executor or administrator to approach the Court for this purpose immediately after the death of the deceased.109

Recommendation

  1. 9 The deceased’s estate should be liable for the reasonable costs, as determined by reference to the size of the estate and other relevant circumstances, of:

a) carrying out rituals associated with the disposal of the body and/or remains

b) disposing of the body

c) disposing of the remains and

d) memorialising the deceased at the site of the body or remains.

 

Funeral and burial agent

  1. 6.106 The Commission considered whether a person should be required to obtain their nominated agent’s consent for the appointment to be valid.
  2. 6.107 The Commission also considered the manner in which a person who had appointed a funeral and burial agent should be able to revoke the appointment.

Agent consent

  1. 6.108 In a number of jurisdictions in the United States, a person can nominate a funeral and burial agent who does not need to consent to the nomination before the person’s death in order for the appointment to be valid.110
  2. 6.109 In Delaware, the nominated agent simply commences arranging the funeral and burial if they wish to carry out the role after the person dies, or opts out if they do not. A person may nominate an alternative agent in case the primary agent is ‘unwilling or unable to serve’ or, alternatively, they may rely on statutory provisions to determine who is authorised to carry out the arrangements.111
  3. 6.110 In Texas and Alaska, the nominated agent or alternative agent must consent in writing before obtaining the authority to act, but they may do so after the nominator’s death.112
  4. 6.111 The Commission asked community members whether a person should be required to obtain their nominated agent’s consent before their death for the appointment to be valid.

Responses

  1. 6.112 Most submissions stated that a person should be required to obtain their nominated agent’s consent before their death for the appointment to be valid.113 A number of those who addressed this issue thought the person should not be required to obtain their nominated agent’s consent, but none of these people provided a reason.114
  2. 6.113 One of the reasons put forward in favour of requiring consent before the person died was that the agent needs to be aware of the appointment and the responsibilities that flow from it.115 It was also stated that the agent’s consent is needed to ensure they are willing and able to carry out any instructions left by the deceased.116
  3. 6.114 The Victorian Aboriginal Legal Service emphasised the need for people to have culturally sensitive conversations about their funeral and burial wishes during their lifetime.117 This would need to include the person tasked with carrying them out.
  4. 6.115 The Victorian Bar likened the role of a funeral and burial agent to that of a ‘donee’ under an enduring power of attorney who must consent to their appointment for it to be valid.118
  5. 6.116 One community member supported government oversight of the appointment to ensure that, after consenting to the nomination, the agent did not later renounce the appointment.119

Conclusions

  1. 6.117 The Commission concludes that a nominated funeral and burial agent’s consent should be required before the death of the nominator for the appointment to be valid.
  2. 6.118 Requiring the nominated agent to provide consent while the nominator is still alive ensures the agent is aware of the appointment before the nominator’s death, and has the opportunity to ask the nominator about their instructions or preferences, and their capacity to pay for them. A nominated agent should be made aware of the rights and obligations of funeral and burial agents before consenting to the appointment.
  3. 6.119 The Commission considers that a prescribed form should be developed for appointing a funeral and burial agent. Both the person nominating the agent, and the nominated agent, should be required to sign and date the prescribed form in the presence of at least one adult witness for the appointment to be valid. These requirements will provide clarity and certainty for all concerned, and thereby prevent disputes or assist in resolving them.
  4. 6.120 The prescribed form should include a guidance note that explains which activities agents have control over, and the fact that an agent may be prevented from giving effect to the deceased’s instructions in relation to their burial and memorialisation where the agent is not also the right of interment holder over the plot in which the deceased wishes to be buried.120 It should also explain the responsibilities of agents where instructions are left and where they are not, and the liability of the deceased’s estate with respect to funeral and burial costs.
  5. 6.121 For convenience, the prescribed form should provide space for people to leave funeral and burial instructions and/or non-binding preferences.121 If a funeral and burial agent resigns, any funeral and burial instructions left by the deceased in the prescribed form should not be considered invalid.122 Instead, the requirement to give effect to the instructions should pass to the next person who has the right to control the deceased’s funeral and burial arrangements.
  6. 6.122 The Commission is of the view that a funeral and burial agent should be able to resign from their appointment at any time during the life of the person who nominated them, as long as they do so in writing. Requiring the agent to resign in writing will ensure the person who appointed them is aware of their resignation and can organise their affairs accordingly. The resignation letter may also be of assistance to a bereaved person who is organising a deceased’s affairs immediately after the death.
  7. 6.123 If a funeral and burial agent wishes to cease acting as a person’s agent after the death of the person who nominated them, they may forfeit the right to control the funeral and burial arrangements by failing to carry out the arrangements within a reasonable period of time or declaring an intention not to act.

 

Recommendations

  1. 10 A funeral and burial agent appointment form should be prescribed in legislation. The form should contain a guidance note that, at a minimum, explains:

a) the activities that fall within a funeral and burial agent’s control, and the limitations of the agent’s control with respect to burial in, and memorialisation at, a place of interment the agent does not also have control over

b) the responsibilities of a funeral and burial agent where a person has left funeral and burial instructions and where they have not and

c) the liability of the deceased’s estate with respect to the costs of carrying out funeral and burial instructions, including that the estate is not liable for the costs of carrying out extravagant instructions.

  1. 11 The appointment of a funeral and burial agent should only be valid if:

a) the person nominating the agent signs and dates the prescribed form in the presence of at least one adult witness and

b) prior to the death of the nominator, the nominated agent signs and dates the prescribed form in the presence of at least one adult witness.

  1. 12 A funeral and burial agent should only be able to resign in writing, before the death of the person who appointed them.


Revocation

  1. 6.124 The Commission considered the manner in which a person who has appointed an agent should be able to revoke the appointment during their lifetime. Ideally a person would revoke the appointment in writing and sign and date the revocation in the presence of at least one adult witness.
  2. 6.125 Though a written revocation of an appointment that adheres to these requirements is preferable because of the certainty and clarity it provides, the ability to remove an appointed funeral and burial agent should not be limited in this way.
  3. 6.126 The Commission considers that if a person later appoints another funeral and burial agent, the later appointment should automatically revoke any earlier appointment. This should be reflected in the prescribed form for appointing a funeral and burial agent.
  4. 6.127 During their lifetime, a person may also have demonstrated that they no longer wanted the person they had appointed as their agent to retain the role, but did not revoke the appointment in writing or appoint another agent. For example, a person may have told others that they no longer wanted their funeral and burial agent to act, or they may have torn up the appointment form.
  5. 6.128 To account for such situations following the death of the deceased, it should be open to affected parties to approach the court to set aside the appointment.

 

Recommendation

  1. 13 A person who has appointed a funeral and burial agent should only be able to revoke the appointment:

a) in writing if signed and dated in the presence of at least one adult witness

b) by the later appointment of another funeral and burial agent or

c) in any other manner that satisfies the court that they clearly demonstrated an intention to revoke the appointment. 

Funeral and burial instructions

  1. 6.129 In the United States and Canada, people are allowed to leave funeral and burial instructions that must be followed by the person in control of their disposal.
  2. 6.130 The Commission asked community members to comment on the form instructions should take, the exceptions to the requirement to carry out a person’s instructions, and whether children should be allowed to leave instructions.
  3. 6.131 Having determined the manner in which people should be able to leave funeral and burial instructions, the Commission also considered the manner in which people should be able to revoke the instructions.

Form

  1. 6.132 The form funeral and burial instructions must take differs across jurisdictions that recognise the instructions as binding.
  2. 6.133 While almost all states in the United States require written instructions, in Colorado they must be written and signed.123 In Texas they must be witnessed by a notary public.124 In New Jersey, they must be written in a will.125
  3. 6.134 In Quebec, Canada, a person’s oral instructions must be followed, provided the intention of the deceased was clear and unequivocal.126
  4. 6.135 The Commission asked community members whether there should be a requirement in Victoria for instructions to be contained in a will, in written form, or in any form as long as the expression of intention is reliable.
  5. 6.136 In Victoria, wills are required to be in writing, signed by the testator, and signed and attested to by two witnesses.127 However, the Supreme Court has the power to dispense with these requirements if satisfied that the person had intended that an informal document be their final will.128

 

Responses

  1. 6.137 A small number of people were of the view that instructions in any form should be enforceable as long as the expression of intention is reliable. Of those who did not support this option, half favoured the requirement that instructions be contained in a will, while the other half favoured the requirement that they be in written form.
Instructions contained in a will
  1. 6.138 Many of those who stated that instructions should be contained in a will explained that they valued the formality with which wills are executed. Some observed that lawyers are often engaged to draft wills which allows them to ensure the client has testamentary capacity and to advise the client about what can and cannot be included.129 Others said that the witnessing requirements for wills could prevent or reduce undue influence or coercion.130
  2. 6.139 The Commission was told about a number of pro bono initiatives that have taken place in Victoria and elsewhere to assist Aboriginal people to make wills, often for the purpose of stipulating their funeral and burial wishes.131 Rachael Grabovic, Accredited Wills and Estate Specialist, Rigby Cooke Lawyers, observed that establishing a requirement for binding instructions to be placed in a will would build on these initiatives.132
  3. 6.140 A number of reasons were given for opposing this requirement. Some noted that wills are often not read until after the deceased’s funeral or burial, and so the bereaved would not learn of the instructions until it was too late.133 One community member expressed the view that it would be distasteful to read a will prior to the deceased’s funeral and burial.134 The Victorian Aboriginal Legal Service told the Commission that it may be inadvisable for a person to distribute a copy of their will before they die.135
  4. 6.141 The Commission was told that many lawyers communicate funeral and burial wishes left by their client in their will to family members who contact them soon after their client’s death. The remainder of the will remains undisclosed until a death certificate is provided.136
  5. 6.142 Maurice Blackburn Lawyers observed that ‘if [instructions] were included in the will, involvement by lawyers would likely be required and would thus increase the expense and complexity of such a process’.137
  6. 6.143 Some argued that they had no need to complete a will, and did not feel they should have to do so simply because they wanted to ensure their funeral and burial wishes were carried out.138
  7. 6.144 In relation to Aboriginal people in particular, the Victorian Aboriginal Legal Service asserted that legal requirements calling for strict adherence to formalities, such as those required in executing a will, are often not culturally appropriate.139
 
Instructions in written form
  1. 6.145 A number of people who argued that instructions should be in written form observed that relying on oral instructions is highly problematic.140 Some stated that family and friends may have different memories of what the deceased relayed to them.141 Others stated that the deceased may have expressed contradictory oral wishes to different people,142 perhaps because they changed their mind.143
  2. 6.146 Relying on the deceased’s oral instructions where they have communicated different instructions to multiple people was considered especially problematic in cross-cultural families where a deviation from cultural or religious norms can be met with heightened confusion or hostility.144
  3. 6.147 Oral instructions featured in several disputes recounted to the Commission. In one case, the deceased told their partner what they wanted to happen to their body when they died, but the deceased’s children from a previous marriage did not believe the partner when told of their parent’s wishes. According to the partner, the children then made arrangements that did not adhere to the wishes of the deceased.145
  4. 6.148 In another case, the deceased had told their partner what they wanted to happen to their body, but the partner chose not to pass this information on to their daughter who was organising the funeral and burial. The daughter only learnt of the wishes when a friend of her mother’s expressed surprise that she had not done what her mother wanted. The daughter was distressed to learn that she had not adhered to her mother’s wishes.146
  5. 6.149 Some stated that the requirement that the instructions be in written form was not enough, and that the instructions should be signed in the presence of a witness.147
  6. 6.150 Others stated that the instructions should be contained in a prescribed form. Maurice Blackburn Lawyers stated:

It is strongly encouraged that a pro forma document be utilised in implementing this system, rather than allowing individuals to submit their binding instructions however they choose without requiring a standard form. It is likely that if a standard form practice were not implemented, confusion would ensue through lack of uniformity.148

  1. 6.151 It was suggested that the prescribed form should:
  • not be too technical149
  • solicit relevant information, such as the method and location of disposal150
  • provide mechanisms for dealing with contingencies.151
  1. 6.152 Several people told the Commission about community-led funeral and burial wishes documentation projects they were involved in.152
  2. 6.153 As part of a pilot project with senior members of the Wutherong community in north-east Melbourne, the Victorian Aboriginal Legal Service encouraged participants to provide written funeral and burial wishes to family members ‘so that there was a common understanding of the deceased’s wishes at the end of their life’.153
  3. 6.154 The Chinese Cancer Society of Victoria has developed a ‘My Farewell Wishes’ form
    (Figure 1) that asks people to document a range of end-of-life choices, including in relation to funeral and burial practices.
  4. 6.155 Support workers from the Chinese Cancer Society of Victoria assist cancer patients to complete the form. The Commission was told that the process of filling out the form enables people to have conversations about death.154

Figure 1: Excerpt from the Chinese Cancer Society of Victoria’s ‘My Farewell Wishes’ form

Chinese_Farewell%20Wishes%20Booklet%20_final_4th%20ed_1.tif

 

 

 

 

 

 

 

 

Chinese_Farewell%20Wishes%20Booklet%20_final_4th%20ed-2.tif

  1. 6.156 The Hindu Community Council of Victoria also has a funeral and burial wishes form (Figure 2) that asks people to identify their preferred funeral and burial arrangements, including the timeframe in which they would like certain rituals carried out.
  2. 6.157 When a person indicates that they wish to complete the form, that person and their immediate family members are invited to a meeting with a minister. At the meeting, the person is invited to explain their wishes to their family members, who are given the opportunity to ask questions. The form is signed by the person completing the form in front of everyone present, and is given to the person responsible for giving effect to the wishes.155

Figure 2: Excerpt from the Hindu Community Council of Victoria’s ‘My Wish’ form

Hindu%20form%20figure%202.tif

 

 
 
Hindu%20form%20figure%202.tif
Instructions in any form as long as the expression of intention is reliable
  1. 6.158 A small number of people considered any form appropriate as long as the expression of intention was reliable.156
  2. 6.159 One community member observed that certain circumstances may warrant instructions in forms other than writing, such as time constraints or other situations where the deceased was only able to communicate orally at the time.157
  3. 6.160 One community member suggested that the evidentiary requirement for consent to the removal of tissue from the body could be used for oral instructions. That is, two witnesses would be required to attest to orally expressed instructions.158
  4. 6.161 The Victorian Bar considered that instructions recorded in any reliable form should be sufficient.159
  5. 6.162 Pia Interlandi and Sally Cant, committee members of the Natural Death Advocacy Network, shared a similar view and specifically expressed support for adhering to instructions contained in video recordings.160
  6. 6.163 Dr Interlandi told the Commission that she had asked her grandmother if she had any wishes for her funeral and burial. As her grandmother began to express her wishes,
    Dr Interlandi asked to record their conversation on a smartphone. After her grandmother’s death, family members had different views about what the deceased would have wanted, and the recording proved instrumental in bringing people together to adhere to her grandmother’s wishes.161

Conclusions

  1. 6.164 The Commission concludes that for funeral and burial instructions to be binding they should be in writing and signed and dated in front of at least one adult witness.
  2. 6.165 Unlike the execution requirement for wills of two witness signatures,162 the Commission considers that if instructions are left in writing, the signature of the person leaving them need only be witnessed by one adult witness for them to be binding. Additionally, requiring the signature to be dated will support the resolution of disputes where a person may have left funeral and burial instructions at different times in their life.
  3. 6.166 The Commission considered whether binding funeral and burial instructions should be contained within a prescribed form. While there is a limited choice of disposal methods available to people at present, there are numerous choices available to people with regard to the rituals they would like carried out, where they want their body and/or remains disposed of and how they would like to be memorialised at the site of disposal. This diversity is reflected in the funeral and burial wishes forms of the Chinese Cancer Society of Victoria and the Hindu Community Council of Victoria.163
  4. 6.167 In this context, the Commission is of the view that the strength of a prescribed form is also one of its drawbacks—it would limit the capacity of community groups to develop forms for binding instructions that are meaningful to its members.164 The law on funeral and burial arrangements should facilitate such community-led initiatives, not undermine them.
  5. 6.168 Accordingly, the Commission does not recommend the creation of a mandatory prescribed form for the purpose of leaving binding funeral and burial instructions.
  6. 6.169 It is the Commission’s intention that funeral and burial instructions that are left in a valid will are binding.
  7. 6.170 The Wills Act 1997 (Vic) identifies categories of people who have the right to inspect and make copies of a will after a person has died.165 These categories include those named in the will or any earlier will, the deceased’s next of kin and creditors.166
  8. 6.171 The Commission considers that it may be important for a funeral and burial agent to inspect a copy of the deceased’s will for the purpose of ascertaining whether it contains funeral and burial instructions. It is foreseeable that a funeral and burial agent, such as a close friend of the deceased, may not fall into one of the categories of people currently identified in the Wills Act 1997 (Vic). Accordingly, the Commission concludes that the
    Act should be amended to allow funeral and burial agents to inspect and make copies of a will.
  9. 6.172 Funeral and burial wishes that are left in a will prior to the commencement of the Commission’s proposed Act should not be binding on the person with the right to control the funeral and burial arrangements of the deceased. Recognising wishes in a will retrospectively would be problematic as the person who left the wishes may have only ever intended for them to provide guidance to their family members.
  10. 6.173 Rachael Grabovic, Accredited Wills and Estates Specialist, Rigby Cooke Lawyers, explained:

Some people take great care thinking through what they want and it is important to them that their [funeral and burial wishes] are carried out. For others, it is not so important that their [wishes] are rigidly adhered to, and those people should have the option of leaving non-binding funeral and burial wishes.167

  1. 6.174 The Commission agrees that allowing people to leave non-binding preferences in addition to, or instead of, binding instructions would allow people to simply provide guidance to their family and friends in relation to issues they do not feel strongly about.168 If a person chose to leave non-binding preferences and instructions, they would need to clearly differentiate between the two.
  2. 6.175 The Commission does not consider that oral instructions should be binding, unless they are electronically recorded.
  3. 6.176 There has been increasing recognition of electronic recordings as wills. In Victoria, a court may recognise audio and visual electronic recordings as wills.169 In New South Wales, a DVD recording170 was recently recognised by the Supreme Court as a valid will. The Commission considers that funeral and burial instructions in these and other electronic forms should also be valid provided they reliably identify the person leaving the instructions and the date on which the instructions were left.
  4. 6.177 The Commission has defined funeral and burial instructions as directions about specified funeral and burial activities that a person intends to have carried out after their death. In the context of electronic records such as video and audio recordings, for the directions to be binding it must be apparent that the recording amounts to an authentic expression of the person’s intention to have the directions carried out after their death.

 

Recommendations

  1. 14 A person’s funeral and burial instructions should only be binding if they are recorded:

a) in writing and signed and dated in the presence of at least one adult witness or

b) in an electronic form that reliably identifies the person leaving the instructions and the date on which the instructions were left.

  1. 15 The Wills Act 1997 (Vic) should be amended so that a person who has the possession and control of a will, a revoked will or a purported will of a deceased person, must allow the deceased’s funeral and burial agent to inspect and make copies of the will.

 

Revocation

  1. 6.178 The Commission considered the circumstances in which a person should be able to revoke their instructions during their lifetime.
  2. 6.179 The most clear and effective way of demonstrating an intention to revoke instructions would be to record a statement to this effect in writing and sign and date it in the presence of one adult witness.
  3. 6.180 Any new instructions a person makes should not automatically revoke their previous instructions. It is foreseeable that people may leave funeral and burial instructions in different formats, for example, in a funeral and burial agent appointment form and in a will. As long as those instructions are not inconsistent, the Commission considers that they should be read together. However, in the case where two or more sets of instructions are inconsistent, the most recent instructions should override the prior instructions.
  4. 6.181 If funeral and burial instructions are left in a will and the will is revoked in accordance with the Wills Act 1997 (Vic),171 the funeral and burial instructions contained in that will should also be considered to have been revoked.
  5. 6.182 This would not cause uncertainty where the person revoked their will by leaving a later will or by otherwise demonstrating an intention to revoke their will.
  6. 6.183 However, the marriage of a testator may also result in the revocation of their will.172 This would mean that, under the Commission’s proposed legislative regime, the marriage of a person who left funeral and burial instructions may revoke those instructions where they were left in a will, but not where they were left in another document or an electronic recording. Nonetheless, for reasons of clarity and certainty, the Commission considers that where a will is revoked, the funeral and burial instructions in that will should also be revoked.
  7. 6.184 Similar to demonstrating an intention to revoke a will, such as by burning, tearing or otherwise destroying a will,173 the Commission considers that a court should be able to exercise its discretion to consider those actions as a valid revocation of funeral and burial instructions, regardless of the form in which they were made.

Recommendation

  1. 16 A person who has left funeral and burial instructions should only be able to revoke the instructions:

a) in writing if signed and dated in the presence of at least one adult witness

b) in an electronic form that reliably identifies the person revoking the instructions and the date on which the instructions were revoked

c) by leaving later inconsistent instructions or

d) in any other manner that satisfies the court that they clearly demonstrated an intention to revoke the instructions.

 

Exceptions

  1. 6.185 In overseas jurisdictions in which people can leave binding funeral and burial instructions, there are exceptions to the requirement to carry out the instructions. These include where the instructions are unlawful, impractical, unreasonable or too costly to be covered in full by the deceased’s estate.174
  2. 6.186 The Commission asked community members to comment on the circumstances in which the person with the right to control the funeral and burial arrangements of the deceased should be exempt from carrying out those instructions in Victoria.

Responses

  1. 6.187 The most common exception identified by community members was where the estate had insufficient funds.175 Typical comments to this effect were that the person in control of the funeral and burial arrangements should not have to carry out the instructions where doing so would ‘incur costs beyond the capacity of the estate to pay’176 or ‘where the estate is insolvent’.177
  2. 6.188 However, some submissions expressed the view that the person with the right to control the funeral and burial arrangements of the deceased should not be required to carry out the deceased’s instructions where the instructions are extravagant.178 That is to say, while the estate may have enough money to cover the costs, the money should be given to other people or used for other ends.179
  3. 6.189 Professor Vines told the Commission that extravagant instructions could be rendered inoperable by ‘draft[ing] legislation that makes the instructions binding subject to there being sufficient funding available for disposing of the deceased in the manner instructed without unreasonable imposition on the estate’.180
  4. 6.190 Other commonly identified exceptions were instructions that were unlawful,181 impracticable,182 and unsuitable or unreasonable.183 Instructions that were described as unsuitable or unreasonable involved scattering the ashes at the summit of Mount Everest184 and being embalmed and placed on display.185
  5. 6.191 The Victorian Bar was of the view that a person should not have to carry out the deceased’s instructions if they are ‘satisfied on reasonable grounds that the funeral and burial instructions were revoked.’186

Conclusions

  1. 6.192 The Commission considers that the person with the right to control the funeral and burial arrangements of the deceased should be exempt from carrying out the instructions where doing so would be unlawful or impracticable.
  2. 6.193 The person with the right to control the arrangements should also be exempt from carrying out the instructions if there is a reasonable possibility that they may not be able to recover the costs of carrying out the instructions from the estate. This exemption should apply where the estate has limited funds, and where the deceased has left extravagant instructions that have not already been paid for by the deceased or any other person.
  3. 6.194 As discussed at [6.88]–[6.105], the Commission considers that the deceased’s estate should only be liable for the reasonable costs of a funeral and burial, as determined by reference to the size of the estate and other relevant circumstances. Therefore, the person with the right to control the arrangements will not be entitled to recover the costs of carrying out extravagant instructions from the estate and, unless the deceased or some other person has paid for the extravagant instructions, the person with the right to control the arrangements should not be compelled to comply with them.
  4. 6.195 In addition, the Commission considers that the court should have the authority to exempt the person with the right to control the funeral and burial arrangements from complying with the instructions where it is satisfied that the person has some other compelling reason not to comply with them.
  5. 6.196 For example, the court might exempt a woman from adhering to her father’s instructions if she could demonstrate that adhering to them would cause her unnecessary and unforeseen distress. The woman might be able to demonstrate this if her father had told her that he wanted to be buried on the family farm so he could remain close to his wife and daughter (who also lived on the farm). If her father and mother then unexpectedly died in a car accident, and she intended to sell the farm and move to Melbourne, giving effect to her father’s instructions would mean that he would be buried alone on a property she no longer lived on or, after the sale of the property, even had access to.
  6. 6.197 This exception to the requirement to carry out instructions should not be used to allow the bereaved to avoid complying with instructions simply because they disagree with them. A person may leave instructions precisely because they know some of their family members object to their preferred funeral and burial arrangements.
  7. 6.198 For example, a person may leave instructions to be cremated, despite this being contrary to the religion of their birth family.187 Though the carrying out of these instructions may cause distress to the deceased’s birth family, this was foreseeable to the deceased at the time the instructions were made and they should not be set aside.
  8. 6.199 If the person with the right to control the arrangements does not want to carry out the instructions, they may refuse to act, in which case they will forfeit the right to control the arrangements. If they are the deceased’s funeral and burial agent, they may also resign from their position.
  9. 6.200 Where the person with the right to control the deceased’s funeral and burial arrangements is exempt from carrying out instructions on one of these grounds, they should only be exempt from carrying out the problematic part of the instructions.
  10. 6.201 For example, if the deceased left instructions stating that they wished to be buried in consecrated ground in a bronze casket, and the person with the right to control the deceased’s arrangements was unable to determine whether they would be able to recover the cost of the bronze casket from the estate, that person would still need to bury the deceased in consecrated ground. However, they may choose to bury the deceased in a more affordable casket.
  11. 6.202 Where the person with the right to control the arrangements is exempt from carrying out the deceased’s instructions, the substitute arrangements should not be unlawful or inconsistent with the known beliefs or values of the deceased at the time of their death.188

 

Recommendations

  1. 17 The person with the right to control the deceased’s funeral and burial arrangements should be required to comply with the funeral and burial instructions of the deceased unless:

a) complying with the instructions would be unlawful or impracticable

b) there is a reasonable possibility that the right holder will not be able to recover the costs of carrying out the instructions from the estate or

c) the court considers there is some other compelling reason for the right holder not to comply with them.

  1. 18 If the person with the right to control the deceased’s funeral and burial arrangements is exempt from complying with the deceased’s funeral and burial instructions on one of the above grounds, they should be required to ensure that the funeral and burial arrangements are not:

a) unlawful or

b) inconsistent with the known beliefs and/or values of the deceased at the time of their death.

 

Children

  1. 6.203 In Quebec, children can leave binding funeral and burial instructions with the consent of their parent or guardian.189
  2. 6.204 The Commission asked community members if children should be allowed to leave funeral and burial instructions in Victoria and, if so, under what circumstances.

Responses

  1. 6.205 Many people did not address this issue, with some stating that this was because they had no expertise or experience to draw on.
  2. 6.206 Of those who had experience working with terminally ill children, none knew of a funeral and burial dispute between a child and their parents.190 Representatives from the Royal Children’s Hospital’s Paediatric Palliative Care Program and Sally Cant of the Natural Death Advocacy Network said that in their experience parents were supportive of the funeral and burial wishes of their children.191
  3. 6.207 It was observed that it can be difficult for parents and children to talk about funeral and burial arrangements, especially when the parents are struggling to accept their child’s impending death.192 Several health care practitioners considered that this should be addressed through a supported discussion process.193
  4. 6.208 Approximately half of those who responded to this issue objected to children leaving binding funeral and burial instructions.194 Among the reasons given for this were that parents should always have the right to make funeral and burial arrangements for children under a certain age;195 the current system works well as evidenced by the lack of disputes;196 and it is culturally inappropriate for children to leave instructions in some communities.197
  5. 6.209 Of those who were in favour of allowing children to leave binding funeral and burial instructions,198 several put forward a minimum age, with 7–10 years of age being the youngest.199 Other suggested ages were 12 and over,200 and 16 and over.201
  6. 6.210 Community members were of the view that children should be able to leave binding instructions if they have ‘Gillick competence’,202 ‘legal competence’,203 or the legal capacity to make a will.204 The Victorian Bar was of the view that children should be able to leave binding instructions if their guardian witnesses the instructions.205
  7. 6.211 Other factors that were considered important when determining whether or not a child should be able to leave binding instructions were how important it was for the child to arrange their own funeral and burial206 and whether they understood the consequences of death and the purpose of funerals.207
  8. 6.212 A number of people expressed the view that terminally ill children develop a certain level of maturity and sense of mortality. In these circumstances, children who may seem too young in the first instance demonstrate the requisite level of maturity and sophistication to leave instructions. For the people who expressed this view, it is important that these children be given the opportunity to do so.208

Conclusions

  1. 6.213 Under Victorian and Australian law, a child is usually defined as a person under the age of 18.209 From the age of 18, a person has the authority to make a range of independent decisions about their life and is considered to have full legal capacity.210 For example, an 18-year-old may independently leave a will,211 make a power of attorney212 and apply for the release of a body from the Coroners Court.213
  2. 6.214 In order to determine whether children should be able to leave legally binding funeral and burial instructions, the Commission considered the ages at which children are legally allowed to undertake activities that require various levels of maturity.
  3. 6.215 At the age of 17, a child may independently decide to leave school.214 A 17-year-old may also join the Australian Defence Force with the approval of their parent(s) or guardian(s).215
  4. 6.216 At the age of 16 or under, a child is able to leave school provided they have completed Year 10, undertake approved activities216 until they reach 17 years of age, and obtain the consent of a parent or guardian, and the school principal.217
  5. 6.217 A 16-year-old may consent to a sexual relationship.218 They may also register to be an organ donor, however, their organs will not be removed without permission from their next of kin.219 At the age of 16, a child may obtain a learners permit to drive, however, they may only drive if they are accompanied by an adult who holds a full driver licence.220 A child may marry from the age of 16 provided the other party to the marriage is at least 18 years of age,221 they have obtained a court order allowing them to get married,222 and they obtain written consent from their parent(s) or guardian(s), or the approval of a prescribed authority, at the time they wish to enter into the marriage.223
  6. 6.218 At the age of 14, a child’s consent is required before Medicare can release their medical information to their parents.224
  7. 6.219 As the law in these areas demonstrates, the decision-making abilities of children exist on a spectrum. Simply being under the age of 18 is not determinative of a lack of sufficient maturity across all aspects of a child’s life, especially once a child reaches the age of adolescence.225 However, the law also recognises that where there may be significant adverse consequences, a child’s decisions require oversight.
  8. 6.220 The death of a child is a harrowing experience for parents, and it is possible that a child may leave funeral and burial instructions that lack insight or an understanding of the consequences for the bereaved.
  9. 6.221 Accordingly, the Commission considers that the consent of a child’s parent(s) or guardian(s) should be required where a child wishes to leave binding funeral and burial instructions.
  10. 6.222 Given the emotional impact of the death of a child, and the risk of harm to relationships where there is disagreement between parents, the Commission considers the consent of both parents or guardians to the child’s instructions should be required, where the child is under the care of two parents or guardians. Where the child is under the care of one parent or guardian, only the consent of that parent or guardian should be required. This approach replicates the statutory regime for parental consent to marriage.226
  11. 6.223 However, there may be circumstances in which a child’s relationship with their parents has broken down and it would be inappropriate for the child’s parents to be able to defeat the child’s wish to leave instructions by withholding their consent. In this case, the Commission considers that children should also be able to leave binding funeral and burial instructions with the consent of the court.
  12. 6.224 The Supreme Court of Victoria has the power to permit a child to make a will if it is satisfied that the child understands the nature and effect of the will, the will accurately reflects the child’s intentions and it is reasonable in the circumstances.227 The Commission is of the view that the same approach should be adopted with respect to the court’s capacity to permit a child to leave binding funeral and burial instructions.
  13. 6.225 A child should also be able to appoint a funeral and burial agent for the same reason as an adult, namely, it may be important to them that someone other than their next of kin (or executor if they have left a will) is responsible for arranging their funeral and burial. Like a child who wishes to leave instructions, a child who wishes to appoint an agent should be required to obtain the permission of their parent(s) or guardian(s), or the court.
  14. 6.226 If a child leaves a valid will in accordance with sections 6 or 20 of the Wills Act 1997 (Vic), funeral and burial instructions contained in that will should also be valid.
  15. 6.227 As explained at [6.181]–[6.183], the Commission considers that funeral and burial instructions that are contained in a will that is revoked should also be revoked. This includes where a will is revoked as a result of the marriage of the testator.

Recommendations

  1. 19 A child (a person under the age of 18 years) should be allowed to leave binding funeral and burial instructions and/or appoint an agent with the consent of:

(a) the child’s parent(s) or guardian(s) or

(b) the court, where the court is satisfied that:

  1. (i) the child understands the nature and effect of the instructions and/or appointment
  2. (ii) it is reasonable in the circumstances to permit the child to leave the instructions and/or appoint the agent and
  3. (iii) in the case of instructions, the instructions accurately reflect the intentions of the child.
  4. 20 A child (a person under the age of 18 years) should be able to leave binding funeral and burial instructions in a will made under section 6 of the Wills
    Act 1997
    (Vic) or authorised by the court under section 20 of the Wills Act
    1997
    (Vic).

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Where no funeral and burial instructions have been left

  1. 6.228 As stated in Chapter 5, the Commission is of the view that where no binding funeral and burial instructions have been left, the person with the right to control the funeral and burial arrangements of the deceased should be allowed to make any arrangements, provided the arrangements are not unlawful or contrary to the known beliefs or values of the deceased.
  2. 6.229 Two elements of this approach are a significant departure from the current common law approach. Firstly, the right of the person to make any arrangements they wish only arises where no instructions have been left. Secondly, the requirement that the arrangements
    not be contrary to the known beliefs or values of the deceased prioritises the deceased’s identity in the decision-making process.
  3. 6.230 The Commission has made these changes because they better reflect society’s emphasis on individual autonomy and, more specifically, the belief that individuals should have the right to decide what happens to their body when they die.
  4. 6.231 However, the Commission has also sought to address society’s emphasis on respecting the needs of the bereaved in their time of grief.
  5. 6.232 The Commission sees merit in requiring the person with the right to control the deceased’s funeral and burial arrangements to seek the views of others when making the arrangements.

 

Obligation to seek the views of others

  1. 6.233 At common law, the person with the right to dispose of the body is not obliged to seek the views of others when making funeral and burial arrangements.228
  2. 6.234 The Commission was told during its preliminary consultations that where a conflict about funeral and burial arrangements arises, it is important to give the bereaved an opportunity to reach consensus.229 As a consequence, the Commission asked community members whether the person with the right to control funeral and burial arrangements should be required to seek the views of others.

Responses

  1. 6.235 A number of submissions were in favour of imposing an obligation on the person with the right to control funeral and burial arrangements to seek the views of others.230
  2. 6.236 It was suggested that proactive engagement with the friends and family of the deceased was not an unreasonable expectation231 and that only those who were close to the deceased should be sought for their views.232
  3. 6.237 One person stated that if the deceased indicated that a particular person should not be informed of their death then the person with the right to control disposal should not have to seek the views of that person.233
  4. 6.238 Kaz Gurney, Managing Lawyer, Goulburn Valley Community Legal Centre, was of the view that the person with the right to dispose of the body should only be required to make ‘reasonable inquiries’ in relation to the views of those close to the deceased.234 Similarly, the Victorian Bar stated that in its view the obligation to seek the views of others should only apply insofar as it was practicable.235
  5. 6.239 A requirement to seek the views of others was considered especially important within Aboriginal communities. The Victorian Aboriginal Legal Service stated:

We consider that this [requirement] is essential for the Aboriginal community, who may have complex ties to land and family, and who carry deep concerns that Aboriginal traditions and cultural practices will be lost over time. If a person who has died is Aboriginal, it is necessary and appropriate to include the views of the relevant Aboriginal community and members of the family.236

  1. 6.240 State Trustees opposed the requirement, observing that seeking the views of others would be too onerous and impractical, particularly given the timeliness with which funeral and burial decisions need to be made and where the friends and family members of the deceased are difficult to locate or communicate with.237

Conclusions

  1. 6.241 The Commission considers that, where no funeral or burial instructions have been left, the person with the right to control the funeral and burial arrangements of the deceased should be required to seek the views of those close to the deceased when making the arrangements.
  2. 6.242 This would assist the person to comply with the requirement that they not dispose of the body in a manner that is inconsistent with the known beliefs or values of the deceased at the time of their death.238
  3. 6.243 In addition, it would help the person to gather information about any wishes the deceased may have expressed as well as the wishes of the deceased’s family and friends. It may also facilitate agreement among the bereaved about how to dispose of the body.
  4. 6.244 Clearly, this obligation should not be overly burdensome and the Commission has sought to limit its application in two ways. First, the person with the right to control the funeral and burial arrangements need only seek the views of those whom they knew to be close to the deceased at the time of their death, and need not seek the views of all family members and friends.
  5. 6.245 A member of the deceased’s family may not have had a close relationship with the deceased at the time of their death. Similarly, someone outside of the deceased’s family may have had a close personal relationship with the deceased. The person with the right to control the funeral and burial arrangements of the deceased should determine whose views they must seek based on their knowledge of the deceased and their relationships.
  6. 6.246 Second, the person with the right to control the arrangements of the deceased need only seek these views where it is reasonable in the circumstances to do so. For example, a history of family violence may make it unreasonable to expect that the person with the right to control the arrangements would contact certain family members. A religious requirement to bury the body within 24 hours would necessarily limit the amount of time a person could spend seeking out the views of others.
  7. 6.247 Once the views of others have been sought, the person with the right to control the funeral and burial arrangements is not obliged to give effect to those views. The Commission considers that it is enough for the person to attempt to contact those whom they knew to be close to the deceased and, where those people express an opinion, to listen to their views.
  8. 6.248 The Commission considers that it can be reasonably assumed that when presented with the views of others, the person with the right to control arrangements has taken those views into account, even if they do not give effect to them.

 

Recommendation

  1. 21 Where no binding funeral and burial instructions have been left, the person with the right to control the deceased’s funeral and burial arrangements must seek the views of those known to be close to the deceased at the time of their death, where it is reasonable in the circumstances to do so.

 

Footnotes

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