Typically, the executor of the deceased’s will has the responsibility to decide on funeral arrangements. The executor should consider the wishes of the deceased if practicable, however, at common law, the directions in a will as to the funeral, cremation or burial are regarded as merely declaratory.[1] Where there is no executor, the right to possession of the deceased’s body must be determined by a court, likely to be the next of kin.
The executor should consult relations of the deceased when attending to funeral arrangements and discuss specifications regarding the funeral and burial of the body to avoid dispute.[2] Ultimately, it is the executor’s role to arrange the funeral and so the family’s wishes are advisory and not binding.
In Smith v Tamworth City Council[3] regarding disputes about the disposal of the body, Young CJ concluded:- If the executor is willing and able to arrange for the burial of the deceased’s body, they have a right to do so.
- A person with the privilege of choosing how to bury the body is expected to consult with relations of the deceased but is not legally bound to do so.
- Where no executor is named, the person with the highest right to take out administration will have the same privilege as the executor in proposition 1 (typically the surviving spouse or de facto spouse, then the children).
- Cremation is today equivalent to burial.
- A person who expends funds in burying a body has restitutionary action to recover their reasonable costs.
Reasonable funeral expenses are payable out of the deceased’s estate. The deceased may have already paid for their funeral in advance or have cover from insurance funds to help with paying funeral expenses. Extra financial help for funerals and other death-related expenses is available from the Department of Communities’ Bereavement Assistance Program where the deceased does not have enough money to cover the cost of the funeral and the family cannot afford to pay.[4]
For more information about Who organises the funeral contact us today…[1] Rosalind Croucher and Prue Vines, Succession: Family, Properties and Death: Text and Cases (LexisNexis, 4th ed, 2013) 170. [2] Andrew Simpson, Australian Guide to Wills and Estate Planning, (Wiley, 2019), 22. [3] Smith v Tamworth City Council [1997] NSWSC 197, 694. [4] ‘Bereavement Assistance Program’, Government of Western Australia Department of Communities, Child Protection and Family Support (Web Page, 23 August 2018) <http://www.dcp.wa.gov.au/SupportingIndividualsAndFamilies/Pages/BereavementAssistanceProgram.aspx>.
