Who should decide what happens to a person’s body when they die? A survey conducted by an Australian charity found that 51 per cent of respondents wanted to plan their own funeral. Those respondents may be surprised to learn that in Victoria the funeral and burial instructions of a deceased person are not binding on the person who is legally authorised to arrange their funeral and burial.
The Victorian Law Reform Commission is examining the law that gives primacy to the wishes of the executor or likely administrator of a deceased person’s estate over those of the deceased. This review forms part of the Commission’s community law reform program, which enables members of the community to contribute their ideas on how to improve Victorian law. Under the Victorian Law Reform Commission Act 2000, the Commission may initiate inquiries into legal issues of general community concern, and which are of relatively limited size and scope.
The Victorian Law Reform Commission adopted this project after a community member wrote to the Commission because she believed the current law was in need of review. She explained that a close family member had recently died and that the woman’s wishes regarding the disposal of her body had not been adhered to by the executors of her estate. The community member said that the impact on her family had been devastating.
The law regarding funeral and burial instructions emerged in 19th century England when the law assumed that people wished to have a Christian burial, and when cremation was disapproved. Twenty-first century Australia is a vastly different society from 19th century England. Many people reject religion or have no religious belief. There are diverse cultural and religious practices and complex family arrangements. Substantial importance is placed upon individual autonomy, and people may reasonably expect their funeral and burial arrangements to reflect their personal values and choices.
The death of a person is a distressing time. Funeral and burial disputes have significant potential to cause additional and long-lasting harm to individuals, families and even whole communities. The question for Victorians is whether the current law reflects society’s values and, if not, what legal regime should take its place.
I warmly encourage anyone with an interest in the issues discussed in this paper to make a written submission to the Commission by 21 December 2015.
The Hon. P. D. Cummins AM
Chair, Victorian Law Reform Commission