Attwood Marshall Lawyers Estate Litigation Senior Associate Martin Mallon joins Robyn Hyland for Law Talks on Radio 4CRB to discuss disputes that arise when families lose a loved one and cannot agree on the dearly departed person’s burial/funeral arrangements or their last Will.
We are living in an era where families are much more complicated than what they were decades ago.
There are interfaith families, blended families, estranged families, just to name a few. And each family make up can present its own challenges when something unexpected happens and a loved one passes away.
When someone dies, close surviving family members often have strong views about how they want to lay their loved one to rest and say their goodbyes. After all, families retain a powerful emotional attachment to the physical remains of their departed loved one. Occasionally, these strong views can be conflicting with other members of the family and disputes can arise that can be very difficult to resolve. These types of matters can be complex and costly to resolve, not to mention traumatic for everyone involved.
Types of disputes
There are several disputes that often arise between family members involving burial/funeral arrangements of a deceased person. These disputes can include:
- when and where the funeral should be held;
- who should or shouldn’t be able to attend the funeral;
- whether religious or cultural beliefs ought to be included in the funeral service; and
- whether the deceased ought to be buried or cremated in the absence of any clear instructions from the deceased.
These disputes can also arise when a person challenges the validity of the testator’s Will.
If family members are unable to come to an agreement and find middle ground, the matter may escalate and require an experienced lawyer to step in and enforce the rights of one party over another to ensure the deceased’s wishes can be fulfilled.
Who gets to decide what happens to a person’s body after they die?
Many people assume that it is the next of kin who automatically takes possession of the deceased’s body, makes the funeral arrangements, and decides what will happen to the body.
This is not the case.
Under common law, an executor nominated under a valid Will has the exclusive authority to take possession and custody of the body of the deceased for the purposes of its disposal (Meier v Bell Unreported, Supreme Court of Victoria, Ashley J, 3 March 1997).
In the case of Leeburn v Derndorfer, His Honour Byrne J accepted the prima facie guidelines in the case of Meier v Bell but added:
“This is not, however, the end of the matter. Although the cases make it clear that the decision as to the manner and place of disposition of a dead body is entrusted to the executors, they do admit qualifications. It is possible in certain circumstances for the court to intervene on the application of an interested party. The executors are expected to consult with those interested, and they may not exercise this power so as to exclude their friends and relatives from expressing their affection for the deceased in a reasonable and appropriate manner. Likewise, although the executors ought to have regard to the expressed wishes of the deceased and to the cultural and spiritual values of the deceased, they are not bound to give effect to them, for it is not competent for a person to dispose of his or her own body, by will or otherwise.”
The cases illustrates that while an executor under a valid Will of a deceased person has exclusive authority, there is scope for the Court to intervene in limited circumstances by an interested party.
Are instructions in a Will regarding body disposal legally binding on the executor?
Whilst a Will is a legally binding document, wishes expressed in the Will in relation to funeral service instructions or where the deceased would like to be buried are not legally binding on the executor.
When the executor is making decisions about the disposal of the body and funeral arrangements, they must consider several factors, including:
- The deceased’s wishes as outlined in their Will, or if they have left separate instructions alongside their Will
- The wishes of the deceased’s surviving family
- The general community and cultural values
- Other practical considerations as necessary.
In Queensland there is legislation that governs the cremation of a body (Cremation Act 2003) (Qld)).
If a person fails and/or refuses to comply with the legislation, they may be liable for fines in excess of $20,000 (see section 5 of the Cremation Act 2003 (Qld)). There is similar legislation in each of the states and territories of Australia. In NSW, the Cemeteries and Crematoria Act 2013 regulates burial, cremation, and the funeral industry, and in Victoria it is the Cemeteries and Crematoria Act 2003.
Who makes decisions if there is no Will and no executor?
When someone dies without a Will, otherwise referred to as dying intestate, that means there is no executor nominated to take possession of the body, make funeral arrangements, and administer the estate.
No person can simply step into this role without applying to the Court for a grant of letters of administration on intestacy.
Usually, it will be the next of kin, such as the deceased’s spouse or child, who can make an application for letters of administration.
Once appointed the administrator, that person then takes on the same responsibilities as an executor. However, it has been acknowledged by Court decisions that it is often impractical to wait until a person is appointed administrator of an estate before funeral arrangements can occur (Smith v Tamworth City Council (1997) 41 NSWLR 680, 691).
Unless there is an objection by another party, the Courts accept that the person with highest priority for letters of administration has the right to dispose of the body. This gets around the usual wait times for getting a grant from the Courts in estates where there are little or no assets involved, which would make obtaining a grant prohibitive due to the costs involved.
If cremated, who controls the ashes?
Generally speaking, the same legal issues apply to the disposal of someone’s ashes if they have been cremated. Sometimes it can be useful to the family for a person to specify what and where they would like their ashes placed or spread, either in their Will or a memorandum of wishes. Ultimately, it is the decision of the executor or administrator as to what happens with a person’s ashes after cremation.
This issue was touched on in an hilarious episode of the Australian ABC comedy, Fisk, which is a fictitious program about a small Wills and Estates legal firm in Melbourne.
How to resolve disputes over funeral and body disposal arrangements
If family members and loved ones become embroiled in a dispute over the disposal of a body or a loved one’s funeral arrangements and they cannot come to an agreement between all parties involved, it is important to seek independent advice from an experienced estate litigation lawyer at the earliest opportunity.
This is a complex area of law and these matters can be extremely time sensitive.
A solicitor will be able to help make an application to the court, collect the evidence required to support the application, and hopefully help the family achieve their desired outcome so that all parties can move on with their lives.
A court will always look at the unique facts of the matter and will make an order if it believes it is appropriate to do so.
Considerations to be aware of if you are involved in a burial dispute
1. Is the Will valid? Usually, disputes over burial arrangements arise where there is dispute about the validity of the Will. The Will may be challenged if someone believes the testator lacked testamentary capacity was unduly influenced into writing the Will or the Will was executed under suspicious circumstances. When the validity of the Will comes into question, it casts doubt about the authority of the named executor to dispose of the body of the deceased.
2. Time. Typically, burial and/or funeral arrangements are made shortly after a person dies. Therefore, if you are considering challenging a Will or seeking to be heard as an interested party on burial and/or funeral arrangements of the deceased, it is important to act quickly and obtain advice from a solicitor who practices exclusively in this area as soon as possible. Any delay may prejudice your rights and interests.
3. Consider the costs. Costs involved in contested litigation with respect to burial arrangements and custody of the body of the deceased can be very high. Such costs should always be considered before embarking on a litigious endeavour.
4. Expertise. Every jurisdiction in Australia has their own set of rules and legislation regarding Wills and estates. It is important to engage a solicitor who is experienced and practices exclusively in estate litigation who can provide advice on your prospects of successfully taking legal action, and the potential cost consequences if such an application is unsuccessful.
Prevention is the best strategy to mitigate the risks of disputes
It all starts with your Will. Although these types of instructions aren’t necessarily legally binding, a person’s Will is the best opportunity to express your wishes and provide your loved ones with clear instructions as to your burial and/or funeral arrangements.
Instructions over burial and/or funeral arrangements will provide strong evidence of your intentions should your executor choose to ignore your wishes or a dispute between family members arise, and the court needs to step in to make a final decision.
As difficult as these conversations can be, it is also important to discuss your wishes with your loved ones. By being upfront and honest with your loved ones, your family will understand what is important to you and everyone will be on the same page when the time comes about how your body is to be disposed and what the funeral service should entail.
Finally, think carefully about who you choose to be your executor. You want to choose someone that you trust to do the right thing. If you choose someone that you know often has conflict with other family members, it is more likely disputes will arise when someone with this kind of family history is in charge of very personal but important decisions.
Attwood Marshall Lawyers – Experts in Estate Litigation
Attwood Marshall Lawyers have one of the largest and most experienced estate litigation teams in Australia.
Although disputes over body disposal and funeral arrangements are rare, our Estate Litigation team are well-versed at handling disputes of this nature, helping support families during the grieving process and resolving conflict to ensure the deceased’s wishes can be carried out and all parties can move forward.
If you find yourself involved in a sensitive dispute of this nature, it is important to speak to someone who understands this area of law, and to help guide you to a resolution as quickly as possible.
Whether you are the next of kin or the executor of an estate, we will help you understand your right to challenge any decisions being made about the disposal of someone’s body that you believe goes against what they wished and walk you through the legal process.