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Victorian law reform: Burial rites

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Cite as: December 2015 89 (12) LIJ, p.71

The VLRC is examining whether the law should be amended to enable a person to leave binding instructions about the method and place of the final disposal of their body.

Snapshot
  • Options are:
  • to embed the common law approach in legislation
  • to impose a prescribed decision-making process on the person with the right to control the burial and funeral arrangements
  • to allow people to leave funeral and burial instructions that are binding on the person with the right to control the disposal of the body
  • to allow people to appoint a funeral and burial agent.
  • Should you have the right to decide what happens to your body after you die? The Victorian Law Reform Commission (VLRC) is asking Victorians this question as part of its inquiry into funeral and burial instructions.

    The VLRC commenced its inquiry into funeral and burial instructions after being contacted by a community member whose mother-in-law’s wishes regarding her funeral and burial had not been carried out by her executors. The community member said that the impact on her family had been devastating, and that the law in this area was outdated and needed to change.

    At common law, if a person dies with a will, then the person’s executor has the right to control what happens to the body. Otherwise, a person’s likely administrator, usually their next of kin, has the right to control their funeral and burial arrangements. The person may take care of these matters in any manner they wish as long as it is not unlawful, unreasonable or carried out in such a way as to prevent family members and friends from appropriately expressing their affection for the deceased.

    A review of the cases that have come before Australian courts over the past 30 years indicates that disputes are more likely to arise where relationships within the family are already strained, family members come from different cultural or religious backgrounds or parents have separated and re-partnered.

    In November 2015, the VLRC published a consultation paper outlining the law and its impact. The issue the VLRC examines is whether the law should be amended to enable a person to leave binding instructions about the method and place of the final disposal of their body and any associated rituals. The consultation paper contains options for reform, and the VLRC is seeking feedback from Victorians. Each option would require appropriate legislation.

  • The first option is to embed the common law approach in legislation. The advantage of the current approach is that funeral and burial arrangements can be made quickly and the outcome is often predictable. Another advantage is that the person with the right to make the funeral and burial arrangements is the person who is able to draw on the estate to pay for them. Enshrining this approach in legislation would maintain these advantages, while making the law more accessible and widely known.
  • The second option is to impose a prescribed decision-making process on the person with the right to control the burial and funeral arrangements in the event of a dispute arising or nothing being done. The person would be obliged to make appropriate funeral and burial arrangements after taking into account certain factors, such as the views of the deceased and of family members. This option places greater emphasis on the wishes of family members, which may assist survivors through the grieving process while also emphasising the wishes of the deceased.
  • The third option is to allow people to leave funeral and burial instructions that are binding on the person with the right to control the disposal of the body, unless there are compelling reasons not to – such as if carrying out the wishes would be illegal or impractical, or there is evidence that the instructions no longer reflected the wishes of the deceased at the time of their death. Allowing people to decide for themselves how they would like their identities and relationships reflected in their funeral and burial arrangements would be consistent with our community’s emphasis on individual autonomy.
  • The fourth option is to allow people to appoint a funeral and burial agent to control the disposal of their body when they die. Adopting this option on its own, without also allowing people to leave binding funeral and burial instructions, would address concerns that a person cannot know every eventuality that may arise upon their death and that people may inadvertently cause harm to those close to them if they left binding instructions. It would also allow people to appoint a person with a particular skill or attribute that is suited to organising their burial and funeral arrangements, such as the peacemaker in their family or a religious leader.
  • The VLRC seeks community views on the options presented. A message that came through strongly in the VLRC’s preliminary consultations was that the court and mediation services available to people experiencing funeral and burial disputes could be enhanced, and the VLRC has asked for feedback on this issue also. More about the VLRC’s inquiry into funeral and burial instructions can be found at lawreform.vic.gov.au. If you would like to share your views on this matter, contact the VLRC’s community law reform manager Eve Gallagher at eve.a.gallagher@lawreform.vic.gov.au or on 8608 7831.

    Contributed by the Victorian Law Reform Commission. For further information ph 8608 7800 or see www.lawreform.vic.gov.au.

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