Funeral and Burial Instructions: Consultation Paper

1. Introduction

The issue

1.1 In 1863, explorers Robert O’Hara Burke and William John Wills were given Victoria’s first state funeral in recognition of their bravery and service to country.^[1] Following the retrieval of their bodies from Cooper’s Creek, they lay in state in Melbourne for two weeks, where 100,000 visitors came to view the bodies.^[2] On the day of their funeral, politicians, defence force personnel, police officers and clergy accompanied their mahogany coffins through spectator-lined streets to the sound of the Dead March.^[3] Following a religious service and the firing of minute guns, Burke and Wills were buried in a vault in Melbourne General Cemetery.^[4]

1.2 Two years later, David Young was the first person to be hanged at Old Castlemaine Gaol, having earlier been convicted of the murder of a 17-year-old housewife in Daylesford.^[5] Like many prisoners hanged at Old Castlemaine Gaol, it appears that his body was buried upright in unconsecrated ground facing the external wall of the prison.^[6] If an application by locals to have him exonerated is successful, they plan to have his body dug up and laid to rest in consecrated ground, over 150 years after his death.^[7]

1.3 As these stories illustrate, funeral and burial practices are about the living as well as the dead.^[8] While they honour (or dishonour, as was the case for David Young) the life of the deceased, they also allow survivors to reinforce their relationship to the deceased and begin the process of moving forward after the death, and allow the community to support survivors through that process.

1.4 However, the views of survivors concerning how a body should be farewelled might differ from those of the deceased, or from those of other survivors.^[9] If an elderly woman tells her family that she wishes to be cremated but one of her sons objects because it is contrary to his religious beliefs, what should happen to the woman’s body upon her death? Or if an Aboriginal man dies, and his birth family want him buried on country while his non-Aboriginal wife wants him buried in their local cemetery so she can visit his grave, where should he be buried?

1.5 While many funeral and burial disputes are resolved peacefully, others cause lasting harm to individuals, families and, occasionally, whole communities. According to the law, the wishes of the deceased person’s executor or, where there is no will, the wishes of the person most likely to administer the deceased person’s estate,^[10] are to be given primacy over the wishes of all others, including the deceased.^[11] In practice, particularly persuasive family members often have the final say.

1.6 The question put to the Victorian Law Reform Commission by a community member, and the question the Commission is now asking Victorians, is: Should the law allow people to leave funeral and burial instructions that are binding upon those who survive them, thereby allowing individuals to determine what happens to their body when they die?

1.7 Few people appear to know who has the right to decide what happens to their body when they die. Those who have chosen their lawyer or accountant as the executor of their will might be surprised to know that their lawyer or accountant has the right to control the disposal of their body upon their death.

1.8 The law regarding this matter first emerged in 19th century England. In the leading case of R v Price in 1884, Mr Justice Stephen stated, ‘The law presumes that everyone will wish that the bodies of those in whom he was interested in their lifetime should have Christian burial’.^[12]

1.9 In the 19th century in England, cremation was widely thought to be illegal. In R v Price, the court held that cremation was lawful as long as it was not done in such a way as to amount to a public nuisance.^[13] However, cremation continued to be regarded with suspicion by many and was rarely practised.^[14] In 1886, the Holy Office of the Catholic Church in Rome banned Roman Catholics from practising or supporting cremation, condemning it as a pagan practice that was carried out by people of doubtful faith.^[15]

1.10 Thus in England in the 19th century, there was relatively little need for people to leave binding funeral and burial instructions.

1.11 The social context in which the law on funeral and burial instructions is now applied in Australia is vastly different. Blended families^[16] and cross-cultural relationships are much more prevalent, and individual autonomy is much more valued, than was the case in England 130 years ago. A corresponding diversity of desire now exists about how a person’s body should be disposed of when they die.

1.12 Given these developments, the Commission is seeking the views of the community on whether the law on funeral and burial instructions aligns with their values and expectations and, if not, what legal regime should take its place.

Origin of the project

1.13 As well as investigating matters given to it by the Attorney-General, the Commission initiates its own investigations into ‘relatively minor legal issues that are of general community concern’.^[17] ‘Relatively minor’ means limited in size and scope. It does not mean that the subject matter of the inquiry is insignificant. The Commission refers to these inquiries as community law reform projects and it asks community members and groups to propose topics of inquiry.

1.14 The topic of funeral and burial instructions was put to the Commission by a community member. A recently deceased member of her family had told various people that she wanted to be cremated and have her ashes scattered in a place that was meaningful to her. However, the deceased’s executors, who were also related to the deceased, chose not to adhere to the deceased’s wishes, as was their right under the law. This caused significant distress to the community member and the Commission was told that the impact on her family had been devastating.^[18]

1.15 After conducting a preliminary investigation into funeral and burial instructions, the Commission concluded that a review of the law in this area could be of significant personal and public benefit.

Scope of the problem

1.16 More than 35,000 people die each year in Victoria.^[19] Most often, hospitals and nursing homes remove a person’s body within hours of their death and, within a day or two, survivors organise to have the body transferred to a funeral provider in preparation for the funeral and burial, which is undertaken shortly after.^[20] If a person dies at home, someone must call a doctor to organise a death certificate and, assuming they do not have to report the death to the police or coroner,^[21] arrange to have the body transferred directly to the funeral provider.^[22]

1.17 At this time of immense grief, and sometimes shock, survivors often have to make decisions quickly about how and where their family member or friend should be laid to rest. These decisions impact on the memory of the deceased, the feelings of family and friends and, to varying degrees, the feelings of the broader community. Some may also believe that these decisions impact on the capacity of the deceased to transition into the afterlife.^[23]

1.18 It is unsurprising, then, that differences of opinion frequently arise in relation to where and how a person should be buried. When that difference of opinion turns into a dispute that cannot be resolved by the people involved, or when those involved feel that they were forced to accept an outcome that was contrary to their wishes or those of the deceased, there can be ongoing trauma and harm.

1.19 The Commission is aware of 47 funeral and burial disputes that have come before the courts in Australia over the past 30 years, with seven of them in Victoria.^[24] Many more disputes have taken place outside the courts.^[25]

1.20 A review of the cases indicates that disputes are particularly prevalent where there is ongoing conflict within the family, parents have separated and re-partnered, or family members have different cultural and religious beliefs.^[26] Just under half of the cases involved Aboriginal deceased.^[27]

1.21 In 2013, 38 per cent of marriages in Australia were re-marriages^[28] and 47 per cent of divorces involved children.^[29] Forty-six per cent of Australians were of British or Irish heritage, down from 90 per cent 70 years ago,^[30] and 19.5 per cent of Victorians were born in a non-English speaking country.^[31] While 99 per cent of Australians identified as Christian in 1901,^[32] by 2011 this figure had fallen to 61 per cent.^[33]

1.22 And yet, despite the increasing diversity of our identities and relationships, and thus the increasing diversity of our attitudes towards funeral and burial arrangements, modern society tends to silence discussions about death.^[34] A survey conducted by an Australian charity found that although 51 per cent of respondents wanted to plan their own funerals, only seven per cent of people had actually done so.^[35]

1.23 While it will not be important to everyone to dictate their funeral and burial arrangements, the Commission is of the view that there is a significant number of Victorians for whom the current arrangement is unsatisfactory. This is causing unnecessary distress and harm, and is likely to cause more in the future.

Previous reviews by law reform commissions

1.24 Reviews by other law reform commissions have been of great assistance to the Commission in its preliminary investigation into this issue. The law reform commissions of Ontario, Western Australia, Queensland and New Zealand have all previously asked whether the views of the deceased regarding their funeral and burial arrangements should be binding on those who dispose of the deceased’s body.^[36]

1.25 While their inquiries and recommendations differed in important respects, the law reform commissions of Ontario, Western Australia and Queensland all recommended that the law allow people to leave legally binding funeral and burial instructions.^[37] Although the New Zealand Law Commission has completed its inquiry, its final report is not yet publicly available.

Our process

1.26 The Commission would like to hear the views of the community on the questions raised throughout this paper. A complete list of questions can be found on page 62. While you are welcome to share any views or experiences you wish in relation to the topic under consideration, the Commission will limit the scope of its inquiry to the terms of reference on page vii.

1.27 The Commission will not review the law relating to tissue (including organ) donation, as it falls outside the scope of the terms of reference. The terms of reference specifically refer to a person’s instructions regarding the final disposal of their body, which takes place after any medical intervention.

1.28 The Commission invites written submissions by 21 December 2015. Instructions on how to make a submission are on page v. The Commission will also meet with individuals and groups that have particular knowledge or experience in this area. Individuals or groups should contact the Commission if they wish to meet in person. The Commission’s contact details are on page v. In addition, the Commission has created an online survey, which can be found at https://www.surveymonkey.com/r/funerals.

1.29 After holding consultation meetings, considering written submissions and assessing survey responses, the Commission will produce a report, including recommendations, which will be presented to the Attorney-General for consideration.

Structure of this paper

1.30 This paper is divided into nine chapters.

1.31 Chapter 1 introduces the topic and includes information on how to participate in the Commission’s inquiry.

1.32 Chapter 2 briefly outlines the requirements for lawfully disposing of a body in Victoria.

1.33 Chapter 3 sets out the common law on funeral and burial instructions in Australia, Canada, England, New Zealand and the United States of America.

1.34 Chapter 4 examines the statutory treatment of funeral and burial instructions in Australia, Canada and the United States of America.

1.35 Chapter 5 considers the case for law reform.

1.36 While the law on funeral and burial instructions impacts on all Victorians at one time or another, there are particular groups of Victorians who are more likely to experience conflict in relation to funeral and burial arrangements. Case studies involving these groups are set out in Chapter 6.

1.37 Chapter 7 contains the Commission’s four options for legislative reform, alongside a discussion of the details and implications of each. Stakeholders are also given the opportunity to explain why the common law should be retained, or to propose an alternative option for reform.

1.38 Chapter 8 outlines the role of court and mediation services in resolving funeral and burial disputes, and asks whether these services could be improved.

1.39 Chapter 9 concludes this paper.

1. State Library of Victoria, Burke and Wills—Terra Incognita (10 September 2004) <http://victoria.slv.vic.gov.au/burkeandwills/aftermath/sttfuneral.html>; ‘The funeral of Burke and Wills’, The Argus, 22 January 1863, 5.

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2. State Library of Victoria, above n 1.

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3. The Argus, above n 1.

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4. Ibid.

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5. Deborah Benson, Judicial Murder (Eagle Hawk Press, 2015).

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6. Information given to the Commission by Old Castlemaine Gaol (14 October 2015).

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7. Ibid.

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8. Unless the context indicates otherwise, throughout this paper the term ‘burial’ includes burial and cremation.

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9. Unless the context indicates otherwise, throughout this paper references to the disposal of a dead body include the disposal of ashes as well as human remains.

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10. The person most likely to administer the deceased person’s estate is usually the deceased’s partner, followed by the deceased’s children, parents etc.

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11. Leeburn v Derndorfer (2004) 14 VR 100, 104; Smith v Tamworth City Council (1997) 41 NSWLR 680; Williams v Williams (1882) 20 Ch D 659, 665.

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12. R v Price (1884) 12 QBD 247, 254.

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13. Ibid.

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14. Robert Nicol, This Grave and Burning Question: A Centenary History of Cremation in Australia (Adelaide Cemeteries Authority, 2003) 72–3, 139, 143; BBC, ‘How Cremation Became the Way to Go’, BBC News (25 March 2009) <http://news.bbc.co.uk/2/hi/uk_news/magazine/7963119.stm>.

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15. Robert Nicol, This Grave and Burning Question: A Centenary History of Cremation in Australia (Adelaide Cemeteries Authority, 2003) 37.

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16. A blended family is a ‘family formed from the members of separate families, usually as a result of the parents’ remarriage’: Macquarie Dictionary (Macquarie Dictionary Publishers, 6th ed, 2013) 153.

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17. Victorian Law Reform Commission Act 2000 (Vic) s 5(1)(b).

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18. Information given to the Commission by a member of the community (29 April 2014).

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19. Number of registered deaths in Victoria: 38,948 (2014); 36,512 (2013); 36,238 (2012); 36,733 (2011); 35,764 (2010); 35,554 (2009): Births, Deaths & Marriages Victoria, Data (28 July 2015) <http://www.bdm.vic.gov.au/utility/about+us/data/>.

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20. The term survivors most often refers to family members and friends of the deceased, but may also include other community members.

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21. The circumstances in which a person must report a death are set out in s 4 of the Coroners Act 2008 (Vic).

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22. Births, Deaths and Marriages Registration Act 1996 (Vic).

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23. See, eg, Heather Conway and John Stannard, ‘The Honours of Hades: Death, Emotion and the Law of Burial Disputes’ (2011) 34 (3) UNSW Law Journal 860, 873.

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24. See Appendix A.

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25. A study conducted in England found that approximately 21% of disputes after the death of a family member were about funeral wishes: National Council for Palliative Care, Dying Matters Survey 2014 <http://dyingmatters.org/news/millions-leaving-it-too-late-discuss-dying-wishes>.

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26. For example, Keller v Keller (2007) 15 VR 667; Laing v Laing [2014] QSC 194; Jones v Dodd (1999) 73 SASR 328.

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27. See Appendix A.

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28. Australian Bureau of Statistics, 3310.0—Marriages and Divorces, Australia, 2013 (26 November 2014) <http://www.abs.gov.au>.

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29. Ibid.

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30. Tim Soutphommasane, ‘Australian Multiculturalism in an Asian Century: The Case for Racial Tolerance’ (3 April 2014) ABC Religion and Ethics <http://www.abc.net.au/religion/articles/2014/04/03/3977736.htm>.

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31. Victorian Multicultural Commission, 2011 Census: A snapshot of our diversity <http://www.multicultural.vic.gov.au/population-and-migration/victorias-diversity/2011-census-a-snapshot-of-our-diversity>.

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32. Australian Bureau of Statistics, 1301.0—Year Book Australia, 2006 (20 January 2006) <http://www.abs.gov.au/>.

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33. Australian Bureau of Statistics, 4102.0–Australian Social Trends, April 2013 (10 April 2013) <http://www.abs.gov.au/>.

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34. See, eg, Anne-Marie Barry and Chris Yuill, Understanding the Sociology of Health: An Introduction (Sage Publications, 3rd ed, 2012) 311.

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35. Include a Charity, ‘Leaving a Lasting Legacy: New Research Reveals Social Media, Rock Music and Colourful Clothes as Part of the New Look Funeral’ (Media Release, June 2013) <http://includeacharity.com.au/wp-content/uploads/2013/08/Include-a-Charity-Survey-Media-Release.pdf>. Information provided to the Commission by Include a Charity indicates that approximately 450 people answered the online survey (26 August 2015).

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36. Ontario Law Reform Commission, Report on Administration of Estates of Deceased Persons (1991); Law Reform Commission of Western Australia, Aboriginal Customary Laws, Discussion Paper No 94 (2005); Queensland Law Reform Commission, A Review of the Law in Relation to the Final Disposal of a Dead Body, Information Paper No 58 (2004); Law Commission (New Zealand), The Legal Framework for Burial and Cremation in New Zealand: A First Principles Review, Issues Paper No 34 (2013).

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37. Ontario Law Reform Commission, above n 36, 262; Queensland Law Reform Commission, above n 36, 129–30.

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