Funeral and Burial Instructions: Report

Preface

The death of a person is a distressing experience for us all. Funeral and burial disputes have significant potential to cause additional and long-term harm to individuals, families and sometimes whole communities.

This community law reform project came about when a community member asked the Commission to review the law on funeral and burial instructions after her family member’s wishes regarding the disposal of her body were not adhered to by the executors of her estate. The community member told the Commission of the substantial and damaging impact this had on her family.

This report forms part of the Commission’s community law reform program. Under the Victorian Law Reform Commission Act 2000, the Commission is able to initiate inquiries into legal issues that are of general community concern, provided they are limited in size and scope.

It is a common misconception that if people leave funeral and burial directions—in their will or as part of a pre-paid funeral plan, for example—those directions have to be followed. In Victoria, a person’s funeral and burial directions are not legally binding. Rather, the executor of a person’s will, or their likely administrator if they did not have a will, has near-absolute control over their funeral and burial arrangements.

The law on funeral and burial instructions emerged in 19th century England when the law assumed everyone wished to have a Christian burial, and cremation was disapproved. Twenty-first century Australia is a vastly different society from 19th century England. Many people reject religion or have no religious beliefs. There are diverse cultural and religious practices and complex family arrangements. Substantial importance is placed on individual autonomy, and people may reasonably expect funeral and burial arrangements to reflect their personal values and choices.

In this report, the Commission recommends the introduction of an Act that would afford Victorians the opportunity to leave binding funeral and burial instructions, and to appoint an agent to control their funeral and burial arrangements. Such legislative reform would be a first in Australia.

I wish to thank the many people who made submissions, met with the Commission and completed the online survey during the course of this inquiry. As part of the Commission’s formal consultation process, the Commission met with members of the public, community organisations, courts, lawyers, funeral directors, palliative care nurses, grief counsellors, government agencies, and faith leaders, among others. I thank them for their important contribution to the work of the Commission.

I also thank my fellow Commissioners who brought significant perspective and expertise to this reference: Liana Buchanan, Helen Fatouros, Bruce Gardner PSM, Dr Ian Hardingham QC, His Honour David Jones AM, Eamonn Moran PSM QC, Alison O’Brien and the Hon. Frank Vincent AO QC.

Finally, I acknowledge the community law reform team, Eve Gallagher, Hana Shahkhan and Joanna Rolfe, for their valuable contribution and dedication to this inquiry. Under the leadership of Eve, the team brought this report to fruition and I thank them for their hard work.

I commend this report to you.

The Hon. P.D. Cummins AM

Chair, Victorian Law Reform Commission

September 2016