10.1 The law relating to funeral and burial instructions is out of date, requires clarification, and does not appropriately reflect community views.
10.2 For many Victorians, it is of great importance to have their beliefs and values reflected in their funeral and burial arrangements. Additionally, many people feel that the needs of all of the bereaved, not just the executor or likely administrator, should be taken into account by the person who controls the deceased’s funeral and burial arrangements.
10.3 The Commission proposes a new Act that reflects and balances these views.
10.4 Under the Act, a person would be able to leave funeral and burial instructions that were binding on the person with the right to control the funeral and burial arrangements, unless that person had a compelling reason not to carry out the instructions. Among the compelling reasons identified by the Commission are that carrying out the instructions would be unlawful or impracticable.
10.5 A person would also be able to appoint an agent to control their funeral and burial arrangements under the Act. This would enable people, including those who were worried that a dispute might arise, to ensure that the person they trusted the most to care for their body upon their death was granted the authority needed to carry out that role.
10.6 The Commission heard of numerous funeral and burial disputes within Victoria that have had a lasting and devastating impact on the people involved. The use of affordable, timely and culturally-appropriate mediation in this area should be encouraged and promoted to assist in the resolution of such disputes.
10.7 However, not all disputes can be resolved without court intervention and the Commission recommends that the Magistrates’ Court of Victoria be granted jurisdiction to determine disputes that arise under the Act, in addition to that of the Supreme Court and the County Court.
10.8 It is the Commission’s hope that, if implemented, the Act would encourage people to talk with their loved ones about their funeral and burial wishes, and to record those wishes in accordance with the law. In this way, the law could assist people to prevent disputes before they arose.