Who decides if you will be buried or cremated?


A loved one has passed away.  Who will arrange the funeral?  What will happen with the body – burial or cremation?

The answer may lie in the Will.   A carefully prepared Will appoints an Executor who is responsible for making the funeral arrangements and disposing of the remains of the deceased.

What happens when the deceased left no Will?  Who makes the decision then?  The usual order of preference is:

  1. The deceased’s spouse or de facto partner;
  2. A child of the deceased;
  3. A parent of the deceased;
  4. A sibling of the deceased; and then
  5. Other family members e.g. grandparents or cousins.

In a recent NSW decision, Ms D died after a short battle with cancer.  She did not leave a Will.  She had an 8 year old daughter.  A dispute arose between her mother and her former de facto as to whether her remains should be buried or cremated.

At the time of her death, Ms D’s former de facto insisted that they had recommenced their de facto relationship after they had separated some 3 years earlier therefore giving him the right to make the decisions about Ms D’s funeral and disposal of her remains.  The basis of his assertions was that Ms D had moved back into their former home about 10 months before she passed away.  Her mother maintained that Ms D was not in a relationship with her former de facto and that she should be the one to make the decisions about her daughter’s funeral and disposal of her remains.

After the Court had a very close look at the relationship between Ms D and her former de facto and after inspecting Facebook posts in Ms D which said ‘I am still at his house, we are still not together though’, the fact that she was receiving a single parenting payment from Centrelink and that she had named her mother as her emergency contact upon her admission to hospital, it decided that Ms D was not in a relationship with her former de facto and gave Ms D’s mother the right to decide how her remains were to be disposed of.

This case show the importance of taking the time to think about your estate planning and to make sure that you have prepared a Will that appoints an Executor who will carry out your wishes after you have passed away.

A carefully thought out estate plan could have avoided the costly and stressful exercise of asking a Court to make a decision about what was to happen to Ms D’s remains after her death.  Your Will can include details about what you want to happen to your body after you have died and specific details about your funeral including music, floral arrangements and anything else that you would like to include in your funeral.

Do not put off the discussion about your estate planning any longer.  Make a time to see one of our experienced solicitors today.


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