Executive summary

 

Introduction

This report contains 25 recommendations in favour of establishing an Act that would enable people to leave legally binding funeral and burial instructions or appoint an agent to control their funeral and burial arrangements after they die, or both.

The Commission initiated a community law reform project on funeral and burial instructions after hearing from a community member whose family members had disagreed about where the ashes of a deceased relative should be scattered. The community member told the Commission that the decision of the deceased’s executors (who were also family members) not to adhere to the wishes of the deceased had a devastating impact on some members of her family.

As the community member discovered, in Victoria there is no legal obligation to adhere to a person’s wishes with regard to the final disposal of their body when they die.

After conducting a preliminary investigation, the Commission determined that a review of the law on funeral and burial instructions would be of significant benefit to the community. In particular, the investigation suggested that the law, which first emerged in 19th century England, was out of step with the values and expectations of people living in Victoria today.

Current law

A review of the law in Australia, Canada, England, New Zealand and the United States of America reveals several approaches to funeral and burial wishes.

These approaches informed the options for reform the Commission put to the community during its consultation process.

Common law

It is well established under common law in Australia that a person’s wishes with respect to the disposal of their body are not legally binding. The person with the right to dispose of the deceased’s body is the executor of their will, or their likely administrator if they died without a will. The executor, or likely administrator, has near-absolute discretion with regard to the method and place of disposal.

The common law in Canada and England is substantially the same as in Australia.

While the executor or likely administrator also has the right to control the disposal of the deceased’s body in New Zealand, they must make appropriate arrangements after taking into account relevant factors, such as the wishes of the deceased and their family members.

In the United States, the common law position is that the funeral and burial wishes of the deceased are binding on the person disposing of the body, unless there is a compelling reason not to carry them out.

Legislation

With the exception of Tasmania and Victoria, every Australian state and territory upholds instructions to be cremated or instructions not to be cremated. Two states recognise both instructions to be cremated and instructions not to be cremated.

In Canada, legislation in British Columbia and Quebec creates an obligation on the person who disposes of a body to carry out the deceased’s funeral and burial instructions.

Neither England nor New Zealand has enacted legislation on funeral and burial instructions.

Legislative regimes exist in several United States jurisdictions that allow people to leave binding funeral and burial instructions, or appoint a funeral and burial agent to control the disposal of their body, or both.

Disputes

Through its community consultation process, the Commission learned that funeral and burial disputes are often driven by different belief and value systems, personal interests, family dynamics and grief. Moreover, society’s reluctance to talk about death prevents people from working through their differences before they die.

The issues people commonly disagree about are:

  • when and where to hold the funeral service
  • the style of the funeral service
  • who can attend the funeral service
  • the place of burial
  • where the ashes are to be kept or scattered
  • how the deceased is to be memorialised.

A review of the case law and disputes recounted to the Commission reveals that funeral and burial disputes are more common among certain families. These are:

  • families of Aboriginal deceased
  • cross-cultural families
  • blended families
  • families of lesbian, gay, bisexual, transgender and intersex (LGBTI) deceased
  • families in conflict.

Community values

A primary objective of the Commission is to ensure the law accords with community values.

The values underpinning the views expressed by community members during the Commission’s consultation process are:

  • respect for the individual autonomy of the deceased
  • respect for the needs of the bereaved in their time of grief
  • the need to bury the body without delay
  • the need to take the time to say goodbye and make inclusive arrangements.

The current law on funeral and burial arrangements does not appropriately balance these strongly held and sometimes contradictory values.

Options for law reform

The Commission invited community members to comment on four options for reform:

Option 1: Enshrine the common law position in legislation.

Option 2: Oblige the person with the right to control the disposal of a body to make appropriate funeral and burial arrangements after taking relevant factors into account.

Option 3: Allow people to leave binding funeral and burial instructions.

Option 4: Allow people to appoint a funeral and burial agent.

In relation to Option 1, the Commission concludes that the common law position should not be enshrined in legislation. The near-absolute control of the executor or likely administrator over disposal is out of step with community values and expectations, particularly in relation to individual autonomy.

The Commission considers that requiring the executor or likely administrator to make appropriate funeral arrangements in accordance with Option 2 does not provide the requisite level of certainty needed by those who feel strongly about a particular course of action for their funeral and burial. Furthermore, what constitutes ‘appropriate arrangements’ for one person may not constitute ‘appropriate arrangements’ for another. There is therefore significant potential for confusion and disagreement.

In relation to Option 3, the Commission considers that people should be able to leave funeral and burial instructions that are binding on the person who controls the disposal of their body. Many people expressed the view that they should be able to determine what happens to their body when they die. Under the Commission’s proposed legislative regime, they could do that by leaving funeral and burial instructions.

In relation to Option 4, the Commission concludes that appointing a funeral and burial agent should be an option available to people in Victoria. People who want to ensure their funeral and burial arrangements reflect their beliefs and values, even though they do not have specific arrangements in mind, could do this by appointing a person they trust to act as their agent. This option may be of use to a person whose religious beliefs differ from those of their family members, for example.

Proposed legislative regime

The Commission considered a number of foundational and specific issues that would need to be addressed under its proposed legislative regime.

Foundational issues

A funeral and burial agent appointed by the deceased should have the highest right to control the deceased’s funeral and burial arrangements. This should be followed by the executor of the deceased’s will, then the deceased’s senior adult next of kin who is willing and able, and then 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.

Aboriginal and LGBTI Victorians told the Commission that the next of kin hierarchy most commonly found in our legal system is based on assumptions that do not hold true for people in their communities. Under the Commission’s proposed regime, a person who did not want their next of kin under the law to control their funeral and burial arrangements could appoint an agent to perform this function instead.

The Commission heard from people in different communities about the funeral and burial activities that are of profound importance to them. These are rituals associated with the disposal of the body and remains, the actual disposal of the body and remains, and memorialisation at the site of the body or remains. Accordingly, the Commission considers that a person should be able to leave binding instructions about these activities, and the person with the right to control the deceased’s funeral and burial arrangements should be responsible for making decisions relating to these activities.

Community members raised concerns about the circumstances in which the person with the right to control the arrangements of the deceased should forfeit that right. What if that person refuses to carry out the instructions? Or what if they are responsible for the death of the deceased? The Commission has set out the circumstances in which forfeiture should be required under its proposed regime.

At present, the deceased’s estate is liable for reasonable funeral expenses. Stakeholders expressed concern that allowing people to leave funeral and burial instructions might encourage people to leave extravagant instructions that might then deprive their creditors or beneficiaries from receiving their share of the estate. The Commission agrees that some restrictions should apply, and has limited the liability of the deceased’s estate accordingly.

Specific issues

Funeral and burial agent

By agreeing to be a funeral and burial agent, a person takes on considerable responsibility. An agent might find themselves in a difficult situation if other bereaved have different views about the funeral and burial arrangements, and may end up liable for the costs of disposal.

The Commission considers that a funeral and burial agent appointment form should be prescribed in legislation that clearly explains the obligations of an agent. The agent’s consent to the appointment should be required, before the death of the person nominating them, to ensure that the agent knows of the appointment and has the opportunity to talk to the person who nominated them about their views.

After consenting to the appointment, an agent may change their mind and no longer wish to organise the person’s funeral and burial. If this occurs while the person who nominated them is still alive, the agent should be able to resign. If this occurs after the death of the person who nominated them, the agent should be able to forfeit the right to control the arrangements by refusing to act.

Funeral and burial instructions

A person’s funeral and burial instructions should only be binding if they are recorded in writing
and signed and dated in the presence of a witness, or if they are recorded in an electronic form that reliably identifies the person leaving the instructions and the date on which the instructions were left.

During the course of its inquiry, the Commission was made aware of community-led initiatives to assist people to record their funeral and burial wishes, and to talk to their loved ones about those wishes before they die. While it is important to ensure the system for recording instructions is robust, the Commission also wants to ensure the system is sufficiently flexible to allow different communities to address the specific needs of their members with respect to organising their funeral and burial.

If a person changes their mind after leaving instructions, they may revoke them.

Stakeholders raised concerns about instructions that are illegal or impossible to carry out, or that are old and therefore may not have reflected the views of the deceased at the time of their death. The Commission identifies a range of specific circumstances in which the person with the right to control the arrangements should be exempt from complying with the deceased’s instructions. As not all of the circumstances in which it would be reasonable for a person not to carry out the instructions can be identified, the Commission considers that the court should have the power to exempt the person from complying with the instructions where appropriate.

Children

The Commission asked community members whether children should be allowed to leave funeral and burial instructions. The Commission is of the view that being under the age of 18 is not determinative of insufficient maturity, especially once a child reaches adolescence. However, the Commission is also mindful that the law commonly recognises that decisions made by children that have significant consequences require oversight. Accordingly, the Commission concludes that children should be able to leave funeral and burial instructions or appoint a funeral and burial agent with the consent of their parent(s) or guardian(s), or with the permission of the court.

Where no funeral and burial instructions are left

Where no binding funeral and burial instructions are left, the person with the right to control the deceased’s funeral and burial arrangements should be required to 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. A history of family violence or a religious requirement to bury the deceased within 24 hours may make it unreasonable to seek the views of certain family members or friends.

Right of interment and cremation

The Commission reviewed the interaction between the Commission’s proposed legislative regime and the requirements for lawfully disposing of a body under the Cemeteries and Crematoria Act 2003 (Vic) and the Cemeteries and Crematoria Regulations 2015 (Vic).

Community members and organisations told the Commission about disputes that involve the person with the right to dispose of the body on the one hand, and the person with the right to control a particular burial plot or to collect a person’s ashes on the other. For example, the person who controls a particular burial plot may prevent the person with the right to control the disposal of the body from burying the body in that plot. Or, because only the person who successfully applied to cremate the deceased’s body may collect the cremated remains, they may prevent the person with the right to dispose of the body (including the ashes) from collecting the cremated remains.

The law governing cemeteries and crematoria in Victoria was enacted to ensure human
remains were treated with dignity and respect, and to provide for the efficient operation of cemetery trusts. The Commission’s proposed regime allows this law to prevail.

The Application for Interment Authorisation form should be amended so that a person who applies to bury a body in a plot is made aware of the near-absolute authority of the person with the right of interment over that plot. The superior right of the person with the right to control the funeral and burial arrangements of the deceased with respect to disposing of the ashes of the deceased should be made clear in the law on cemeteries and crematoria, and the Application for Cremation Authorisation form should also be amended to reflect this.

Which court or tribunal should hear disputes?

The Commission’s proposed legislative regime should lessen disputes by encouraging people to discuss their funeral and burial arrangements with family and friends before taking advantage of the new legal avenues available to them. However, by removing the near-absolute authority of the executor or likely administrator, the regime would create more opportunities for people to go to court in the event of a dispute. Consequently, the Commission asked the community to consider which court or tribunal should hear disputes under its proposed regime.

 

At present, the Supreme Court and County Court have jurisdiction over disputes that arise in relation to who has the right to dispose of a deceased’s body at common law, and how that person exercises the right.

The Commission concludes that the Supreme Court, County Court and Magistrates’ Court should have jurisdiction over disputes that arise under its proposed Act, except for disputes that concern the authority of an executor or the deceased’s estate. The complexity and financial consequences of probate and estate administration matters warrant Supreme or County Court jurisdiction, whereas more limited funeral and burial disputes do not.

Features of the Magistrates’ Court that led the Commission to reach the conclusion that it should have jurisdiction over more limited funeral and burial disputes include its availability, affordability and flexibility. Most important, however, is the capacity to join Magistrates’ Court and higher court proceedings where they both have jurisdiction.

Mediation

Affordable, timely and culturally-appropriate mediation services run by independent mediators could be of great assistance to people involved in a funeral and burial dispute. Accordingly, the Commission concludes that the Dispute Settlement Centre of Victoria should take steps to enhance public awareness of its ability to mediate funeral and burial disputes in this manner.

Conclusion

A new Act is needed to enable people to leave binding funeral and burial instructions or appoint a funeral and burial agent, or do both, as the Commission’s proposed legislative regime could not be readily accommodated within existing legislation. Further, a stand-alone Act on funeral and burial arrangements would be easier for people to find and understand.

The Commission is of the view that, if implemented, the Act would encourage people to discuss their funeral and burial arrangements with their loved ones before recording their wishes in accordance with the law. It is the Commission’s hope that this will bring comfort to people planning their funeral and burial, and minimise disputes among the bereaved.

 

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