The death of a loved one is a very emotional time, and often with heightened emotions come disputes.
We all know that there can be disputes over the distribution of an estate, but what happens when there are disputes over the burial arrangements of the deceased?
Who is responsible for funeral arrangements?
The executor of an estate is the person primarily responsible for deciding on the funeral and burial arrangements of the deceased. In making decisions, an executor is expected to consult with interested parties and not exercise his/her power to the exclusion of friends and family expressing their affection for the deceased in a reasonably appropriate manner. The executor is to consider relevant spiritual, religious and cultural factors where they arise.
The executor holds the deceased remains as trustee for the purposes of dealing with them or disposing of them in an appropriate way. The executor does not “own” the remains and any decision regarding the remains must be made having regard to the obligations that the role of the executor has.
What if there is no executor as there is no will?
When someone dies without making a will or with a will that does not effectively dispose of their assets, they are said to have died intestate.
If this occurs, an application is made to the Supreme Court by a surviving spouse or child seeking that the estate be distributed in accordance with the intestacy rules. The Application would also seek “letters of administration” in favour of the person who would administer the estate given that there is no executor appointed under the will.
If there is a dispute regarding the decisions made concerning funeral arrangements an application can be made to the Court to resolve the issue. This is the case whether there is a will or not.
In a recent NSW case of Abraham v Magistrate Stone, Deputy State Coroner the Court was asked to decide which parent could take possession of the body of their recently deceased child, to make funeral arrangements and final decisions of the resting place for the child.
While residing in Sydney, both parents were New Zealanders of Maori descent, as was the deceased child whose body was subject to the application. The Father sought to cremate the deceased and have a traditional Maori ceremony in Sydney. The mother sought to return the deceased to New Zealand for her to arrange a traditional ceremony and burial.
Evidence before the court was that the deceased identified as Maori but had not spent a lot of time in New Zealand (only having travelled there on three occasions).
The cremation of the body was a major issue in dispute. The mother held the view that cremation was against Maori culture where as the Father stated that although not the preferred burial method in Maori culture, cremation did occur.
The Judge found in favour of the Father after having regard to many factors, including how cultural issues of this nature have been dealt with by the New Zealand High Court, and the established principle that where a dispute about burial arises between two or more persons of equally ranking privilege, the practicalities of the burial without unreasonable delay will decide the issue.
How to avoid a dispute
Australian common law clearly states that the instructions left by a deceased about their funeral and burial arrangements are not legally binding, however such an expression can be used to assist an executor and/or judge in the decision-making process should a dispute arise.
When it comes to cremation in Queensland the law is different. Section 7 of the Cremations Act 2003 (Qld) provides that a legal representative of a deceased person is bound by the legislation to follow the deceased’s written instructions for his or her remains to be cremated, if the legal personal representative knows of these instructions.
Similarly, Section 8 provides that permission to cremate must not be granted if there is an objection from the deceased persons personal representative, spouse, adult child or parent. Deceased persons written instructions to be cremated however override any objection noted.
This means that if you have a view about your body being cremated (or not being cremated) you should clearly state this in your will and ensure that your friends and family know that this is the case. In this circumstance your executor would be bound by law to have your body cremated (or not as the case may be).
There is very little that we can control with 100% certainty following our death, however the best way to avoid a dispute arising is to express your wishes clearly in your will and make sure that the executor of your estate and other family members know of your instructions.