There is little doubt that that we still live in “death denying” community where talking about death is considered an uncomfortable and taboo topic.

Consequently, too few people express their wishes with regards to their burial during their lifetime. Add into the mix the highly emotional time following the death of a loved one and it is only natural that disagreements and disputes arise between family members over a loved one’s burial plans.

Disagreements and disputes can vary from where the person is to be buried, whether they are to be buried or cremated, and who is to be invited (or uninvited) from the memorial service. Disputes are more likely to arise where:

  • The deceased is of indigenous descent;
  • In cross cultural families;
  • In blended families;
  • In families of where the deceased was lesbian, gay, bisexual, transgender or intersex;
  • In families where there is or has been conflict.

Disputes regarding the disposal of body are unique in that there is usually no “compromise” that could satisfy all parties.

Where does the Law stand with regard to disposal of body?

A testator cannot dispose of something which he or she does not own. A corpse is not considered “property” (Williams v Williams (1882) 20 Ch D 659) and therefore cannot be subject to property offences such as being seized or stolen.

Contrary to common belief, wishes and directions set out in a Will regarding burial or cremation are precisely wishes. They are not binding on the testator’s executor or enforceable at law. At best, they offer guidance to the executor and to the family and are morally binding.

Where then does the law stand with regard to the disposal of body?

Where there is a Will , the executor (and if there is more than one, then the executors jointly unless contrary intention is expressed in the Will) has the right and responsibility to arrange for the disposal of the deceased person’s body.

Where there is no Will, then the person with the highest rank to apply for a Grant of Representation in that jurisdiction has the same rights as an executor. This of itself might cause disputes as there may be disagreement as to who ranks has priority ranking to apply for a Grant of Representation (say for example, in the situation where the children of a deceased person deny that the deceased’s girlfriend was his legal “de facto” partner).

The principles regarding the disposal of body were discussed in a fairly recent case of Darcy v Duckett in the NSW Supreme Court. This case had to consider both the principles in law, and also traditional Aboriginal law.

Mr Darcy died intestate leaving 4 children from one relationship and another 4 children with his de facto partner. He was born in Gulargambone (NSW) and was part of the Aboriginal Weilwan tribe. He had also been living on and off with his de facto partner at Bowraville (NSW). Ms Darcy’s sister insisted that he be buried on Weilwan country and his de facto partner wanted him buried in Bowraville.

The common law principles regarding the right to dispose of a body were summarised by the Court (referring to the case of Smith v Tamworth City Council (1997) 41 NSWLR 680):

  1. A person named as an executor in the deceased’s will has the right to arrange for the burial of the deceased’s body.
  2. Apart from appointing an executor, a person may not dictate what will happen to his or her body.
  3. The person responsible for the burial of the body is expected to consult with other stakeholders, but is not legally bound to do so.
  4. If no executor is named, the person with the highest right to apply for a grant of administration will have the same right regarding disposal of the body as a named executor.
  5. The right of the surviving spouse or de facto spouse will be preferred to the right of the deceased’s children.
  6. Where more than one person has an equal right to disposal, the practicalities of burial without unreasonable delay will prevail.

The Court had regard to the views of the indigenous community. The Court ultimately held that de facto partner had a superior claim for administration of Mr Darcy’s estate and also had superior right based on Indigenous laws and traditions.

Different rules apply to persons who are members of the defence force or armed services who die while on service. Special rules also apply for deceased destitute.

Further, where the deceased has expressed or implicitly requested not to be cremated, those wishes must be taken into account (s 20 Cemeteries and Crematoria Act 2003 (ACT)).

There are two takeaway point from the Darcy case:

  • It is important to put a Will in place that validly appoints an executor who can take care of your affairs and burial/cremation once you die; and
  • It is important to talk about and express your wishes with regard to your burial/cremation during your lifetime.