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Your burial, ashes and wishes

by | Mar 7, 2022 | Wills & Estates

In our recent article we discussed funeral arrangements and costs and how decisions regarding your funeral will be the responsibility of your legal personal representative, whether that be the executor appointed in your Will or the administrator of the estate (or persona entitled to be administrator.

What does this mean in terms of a burial or disposal of ashes?

Your ashes and your wishes

There is a longstanding proposition at law that your human remains are not property and therefore cannot form part of your estate or be distributed in accordance with your Will.  However, the courts have held that when dealing with ashes, they can be deemed property in some circumstances.

Your legal personal representative has the right to possess your ashes as property however, they do no own your ashes or have any proprietary right over them, they simply hold them ‘on trust’ to dispose or deal with them in an appropriate manner.

When determining what is ‘appropriate’, Courts have given guidance that they will consider:

  • your wishes;
  • the wishes of your loved ones;
  • your community and cultural values; and
  • any other factors the court considers relevant.

In the case of Keller v Keller [2007] VCS 118, the executor appointed under the Will had the right to make decisions regarding disposal of the deceased’s remains, however because of a dispute between the deceased’s two children as to whether she should be buried or cremated, the executor was unwilling to make a decision.

In this case, the court held that the deceased’s daughter, rather than her son had the right to deal with the deceased remains.  The Court placed greater weight on the trust the deceased had placed in her daughter during her later years in life through appointing her as medical attorney and through accepting the care she provided when in her final stages of illness.

As a result, the answer is not always clear cut.

A battle of faiths – a recent case study

In the recent NSW case of Gus Kak v Allison Sarah Kak (nee Boman) [2020] NSWSC 140, the court confirmed that an executor appointed in a Will has the right to make funeral arrangements.

This case centered on a dispute between the deceased’s widow and the deceased’s brother and whether his burial rights would be conducted in accordance with the Catholic or Muslim faiths.  The deceased was born into the Muslim faith however later in life adopted Catholicism but continued to have a connection to both religions during his lifetime.

The deceased’s brother argued that the funeral should be carried out in accordance with the Muslim faith whereas his widow argued that his funeral should be held in the same Catholic Church where they were married.

In the end, the court held in favour of the widow as she has been appointed sole executor of the estate and therefore had the right to dispose of the body and make all decisions regarding the funeral, burial or cremation.

What can you do?

The responsibility and authority to make decisions regarding your funeral, burial or disposal of ashes lies primarily with your legal personal representative. Generally, closeness in the later stages of life and a person with insight into a deceased’s views later in life will be given more weight in disputes that arise.

To ensure the right person is making these decisions on your behalf, it is essential that you make a Will and consider who your executor will be, and that they can be trusted to make decisions in accordance with your views.

If you need to make or update a Will, or should you have concerns regarding your legal rights when it comes to a loved one’s estate, funeral arrangement, burial or cremation, please contact our Wills and Estates Team who will be able to assist you on 03 9614 7111 or by email to melbourne@nevettford.com.au.