Victorian Burial Rights - Who Decides what Happens to Your Body After Death?
Written by Robert Kuszer
Edited by Gabriella Ferraro
A corpse cannot be considered property.
Instructions in your Will as to how you wish to be buried or cremated after your passing are not legally binding. Instructions are considered as 'wishes' or a preference of the deceased.
Instead, the decision is to be typically made by the deceased's executor.
The executor has ownership of the corpse for the purpose of disposal
An executor is someone that is elected by the testator (the creator of the will) who becomes the trustee of the testator’s assets upon death.
An executor is not legally bound by the testator’s wishes regarding funeral and burial arrangements. The executor is also not bound to abide by the wishes of close family and friends of the deceased.
The executor has a legal right to custody of the corpse for the sole purpose of burial.
What if there is no executor or more than one executor?
Where the deceased has omitted to elect an executor, disposal of a corpse becomes the right of a legal representative or someone entitled to be appointed as the administrator of the deceased - such as your next of kin.
When there are two or more executors appointed by the deceased, the situation may become more complicated, particularly if there is disagreement. Commonly, the court will decide that the most appropriate resolution is how the corpse can be disposed of without unreasonable delay.
Practicality in a dispute between co-executors will most likely lead the court to employ reasoning for their decision that differs on a case-to-case basis. For example, the court may in fact decide that the most practical method is to rely on the wishes of the family of the deceased, based on spiritual or religious traditions. Alternatively, the court may attempt to find a middle ground to accommodate the wishes of both litigants as to the disposal of the deceased’s corpse.
If you have any questions about the above or the obligations as to burial and cremation, please do not hesitate to contact our office on (03) 9311 8911.