We have posted previously about the new varied options available for disposal of your body after your death. What wasn’t addressed in that article was the issues around ensuring as far as possible that those wishes are carried out.
This matter is again relevant with an article in ABC News today: ‘Pam doesn’t want to be buried in a coffin, so she’s knitting her own recycled burial shroud’: https://www.abc.net.au/news/2019-07-27/natural-burials-push-for-dedicated-burial-ground-in-tas/11329288
Generally, 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. Therefore, instructions in the will as to disposal of the body are not strictly binding.
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.
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.
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):
- A person named as an executor in the deceased’s will has the right to arrange for the burial of the deceased’s body.
- Apart from appointing an executor, a person may not dictate what will happen to his or her body.
- The person responsible for the burial of the body is expected to consult with other stakeholders, but is not legally bound to do so.
- 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.
- The right of the surviving spouse or de facto spouse will be preferred to the right of the deceased’s children.
- Where more than one person has an equal right to disposal, the practicalities of burial without unreasonable delay will prevail.
This issue is another example of why it is crucial to seek legal advice when preparing a Will and administering an Estate.