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Burial rights out of step

Burial rights out of step

By VLRC

Advocacy Wills 

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People should have the right to decide what happens to their body when they die, the VLRC recommends.

A man bought two adjacent burial plots, one for his wife and the other for himself. His wife died first and was buried in her plot. The man then married again and bought two more adjacent plots, one for himself and one for his second wife. After he died there was a dispute between his second wife and his children about which plot he should be buried in, and what should be inscribed on the headstone. Whose wishes should prevail – the deceased, who wanted to be buried in the second plot, or the oldest son (the executor) and the other children, who wanted their father beside their mother in the first plot?

The Victorian Law Reform Commission (VLRC) heard about this real-life situation during its inquiry into funeral and burial instructions, the report of which was published in December 2016. It was just one of many disputes that arise around the question of who should decide what happens to a person’s body when they die.

The crux of the matter is that Victorians do not have the legal right to decide what happens to their body when they die. Instead, a person’s executor (if there is a will) or the likely administrator (if there is no will) has the right to control the funeral and burial of the deceased.

This law emerged in 19th century England, when it was assumed that everyone wanted a Christian burial. Twenty-first century Australia is a vastly different society in which individual autonomy is highly valued. For example, a gay man may want his funeral to reflect his identity and the important relationships in his life. But what if the funeral is organised by family members who never accepted his sexual identity?

Consider the case of an Aboriginal person who lives with a partner far from their traditional country. On the person’s death, their relatives may want the deceased’s body returned to country for its final resting place. However, the partner of the deceased may want the burial to take place close to where the couple lived. Whatever views on the matter the deceased may have expressed are not legally binding.

The VLRC spent 15 months reviewing the law and concluded that it needs to be modernised to match the values and expectations of the 21st century. Victorians today have a range of religious and spiritual beliefs, no religious beliefs, or reject religion. People reasonably expect funeral and burial arrangements to reflect their personal beliefs, values and choices. The VLRC recommends a new Act that allows people to leave binding funeral and burial instructions and/or appoint an agent to control the arrangements.

In its report the VLRC recommends that Victorians should be able to leave legally binding instructions regarding:

  • rituals associated with the disposal of their body
  • mode of disposal of their body (ie, cremation or burial) including disposal of their ashes
  • how they would like to be memorialised.

In preparing this report the VLRC consulted widely with a diverse range of community members including organisations representing Aboriginal and culturally and linguistically diverse groups, palliative care organisations, faith leaders, funeral directors, lawyers and others with an interest in the field. Thirty-nine submissions were received and more than 300 respondents completed an online survey.

Community views were strongly in favour of binding funeral and burial instructions, with very little support for the current legal approach. The VLRC agrees that more clarity around people’s wishes for their funeral would reduce the number of family disputes that occur after a person’s death.

However, that does not mean that there are no limits on what instructions a person can leave. The VLRC recommends that funeral and burial instructions should not be legally binding if they are unlawful, impractical, the deceased’s estate can’t afford them or there is some other compelling reason. (This would rule out, for example, leaving instructions to be buried on Mount Everest).

Nor does this mean that all disputes will be eliminated. However, if the deceased could leave legally binding instructions, it would provide greater certainty and clarity to the bereaved about the funeral and burial arrangements.

The VLRC also encourages people to talk to their loved ones about what they want to happen at their funeral and burial. A person expressing their wishes for their funeral and burial before they die can reduce the likelihood of a dispute among the bereaved.

The report is available at lawreform.vic.gov.au. n This column is contributed by the VLRC. For further information ph 8608 7800 or see www.lawreform.vic.gov.au.

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Disclaimer: Views expressed by commentators are not necessarily endorsed by the Law Institute of Victoria Ltd (LIV). No responsibility is accepted by the LIV for the accuracy of information contained in the comments and the LIV expressly disclaims any liability for, with respect to or arising from any such views.

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