08 Aug Burial and Cremation Rights
Funerals are a difficult time. The death of a loved one can be one of the most exhausting and emotionally turbulent experience one encounters in life; especially for those responsible for organising the burial. It is precisely because of these considerations that makes the law on burial rights – perhaps an under-appreciated area of law– so important.
At the outset, it should be emphasised that the law relating to funeral arrangements and the disposal of human remains is more extensive than one might think. Given the need for disputes involving remains to be resolved quickly, it is also an area where the practical needs and capabilities of the parties often assume great importance.
There are two sets of issues that may arise in relation to a dispute over the burial or cremation of a deceased person, namely:-
- The jurisdiction of a Court or a Coroner to decide between the competing claims of those seeking the right of burial; and
- The legal principles that a Court will take into account when making a decision as to who should have the right of burial.
The Supreme Court of Victoria has jurisdiction to determine cases involving competing claims of persons wishing to be given possession and control of a body for disposal or cremation. This jurisdiction however is subject to any decision made by the Coroner to release a body to a person for disposal under the Coroners Act 1985 (Vic).
If a decision is made by a Coroner to release the body to a person, the Supreme Court will not be able to reverse or vary that decision unless it can be shown that an error of law has occurred. If a decision has not been made by the Coroner (and no investigation is being undertaken by the Coroner with a view to making such a decision), the legal proceeding will be heard in the Supreme Court.
Legal Principles for Resolving a Dispute relating to Burial Rights
Who has burial rights?
A right of burial is a license over a particular plot of land. Once the body has been buried in the plot, the license cannot be revoked. If a testator has named an Executor in his or her Will, and that person is ‘ready, willing and able’ to take on the role of Executor, then they have the responsibility of organising the funeral of the deceased, whether it be burying or cremating the body. This right is conferred on them as an Executor or Administrator of an estate. This is sometimes referred to as an “absolute right”, however if the Executor is not willing or able to organise the funeral of the deceased, an application to the Court can be made seeking an order which authorises and confers the responsibility onto another person to be given control of the body for disposal. The application will be decided on the following principles:-
If the deceased does not name an Executor or if the Executor is unwilling or unable to accept the role, the Court will usually confer burial rights on the person with the highest right to take out administration. However this is subject to any compelling cultural and spiritual factors favouring a person of a lower priority. In Victoria, the order of priority for administration is governed by common law, which is summarised as follows:-
- spouse of the deceased
- children of the deceased or, if the children are minors, the children’s guardian
- adoptive parents of the deceased
- biological parents of the deceased
- foster parents of the deceased
- extended family of the deceased
- householder of the premises in which the deceased passed away.
Where there is a dispute amongst two persons of equal priority, (for example the mother and father of the deceased), the practicalities of attending to disposal with promptness and decency will be the deciding factor. Factors such as the place of death and the ability of one of the parents in an alternate location may therefore ‘tip’ the balance in favour of one person.
What can a person with burial rights do?
Whilst the person responsible for the burial or cremation of a deceased person is generally expected to consult with other stakeholders, and the wishes (if any) of the deceased- he or she is not legally bound to do so. Likewise, a Court will generally refrain from directing that person as to how the burial or cremation should occur.
One express limitation on the right of burial is that the holder of the right will be prevented from using his or her right in such a way so as to exclude friends and relatives of the deceased expressing their affection for the deceased. For example, a person will be prohibited from restricting the friends and family from placing flowers on the deceased’s grave.
Subject to any reasonable by-laws created by the cemetery authority as to the maintenance and appearance of the cemetery, the holder of the right of burial has the power to decide on the appearance of the grave and headstone. In general, a body must be buried in a public cemetery and the appropriate authorisation must be obtained pursuant to the Cemeteries and Crematoria Act 2003 (Vic).
The holder of the burial right is permitted to assign that right to another party (i.e. transfer it); or give it to another party on trust. Where rights are given on trust, they can only be exercised in the interests of the original holder of that right.
Cremation is nowadays equivalent to burial. Where a body is cremated, the persons with burial rights can dispose or deal with the ashes in any way they see appropriate, having regard to the wishes of the deceased and/or the family or other interested parties.
Costs of Funeral Arrangements and Memorials
A person, who expends funds in arranging the deceased’s funeral, is entitled to claim his or her reasonable expenses in relation to same from the estate of the deceased. The costs should not be exorbitant and so as to avoid any disputes with beneficiaries, it is always best for Executors/ Administrators to consult the family and beneficiaries in relation to the funeral arrangements and costs associated with same.