Funeral and Burial Instructions: Consultation Paper

4. Funeral and burial instructions in legislation

Introduction

4.1 This chapter reviews the statutory treatment of funeral and burial instructions in Australia and other countries.

4.2 With the exception of Tasmania and Victoria, every Australian state and territory upholds people’s wishes to be cremated and/or their wishes not to be cremated in certain circumstances. Victoria only recognises the wishes of people not to be cremated when a magistrate or coroner orders the disposal of the body of a person with limited resources.

4.3 In some jurisdictions in Canada and the United States, legislation imposes on the person with the right to dispose of a body an obligation to adhere to the funeral and burial instructions of the deceased. Legislative regimes allowing a person to bestow upon an agent the right to dispose of their body have also been established in the United States.

4.4 Neither England nor New Zealand has enacted legislation recognising the wishes of the deceased in relation to the final disposal of their body.

Australia

4.5 Most Australian states and territories recognise the deceased’s wishes to be cremated and/or the deceased’s wishes not to be cremated in certain circumstances.

Wishes to cremate

4.6 In New South Wales and Queensland, when the deceased has expressed a desire to be cremated in written instructions the law prohibits the cremation being carried out other than in accordance with those instructions.^[1] In Western Australia, when the deceased has expressed a desire to be cremated in written instructions, legislation obliges the administrator of the deceased’s estate to use all reasonable endeavours to carry out the deceased’s wishes regarding their cremation.^[2]

4.7 In the Northern Territory, Queensland, South Australia and Western Australia, when a personal representative or next of kin objects to the cremation of the deceased, legislation awards primacy to the wishes of the deceased where the deceased has left signed or attested written instructions expressing a desire to be cremated.^[3]

4.8 There is no legislation in Victoria recognising a person’s wish to be cremated.

Wishes not to cremate

4.9 In the Australian Capital Territory, New South Wales and Western Australia, if a deceased leaves instructions expressing a desire not to be cremated, it is unlawful to cremate the body contrary to those instructions.^[4]

4.10 In Victoria, similar legislation that generally recognised a person’s instructions not to cremate was repealed.^[5] However, Victoria continues to recognise the wishes of people with limited resources in relation to cremation when a magistrate or coroner is making an order for the disposal of their bodies. When a magistrate or coroner makes an order requiring a cemetery to dispose of a person’s body free of charge, the magistrate or coroner must direct the cemetery to cremate the body unless cremation was contrary to the wishes or religion of the deceased.^[6]

Canada

4.11 Legislation in British Columbia and Quebec creates an obligation on the person who disposes of a body to carry out the deceased’s funeral and burial instructions.^[7]

Funeral and burial instructions

4.12 In British Columbia, the Cremation, Interment and Funeral Services Act, SBC 2004 provides that the deceased’s written preference regarding their disposal is binding on the relevant person within the statutory hierarchy if the preference is stated in a will or funeral services contract and compliance ‘would not be unreasonable or impracticable or cause hardship’.^[8]

4.13 The Civil Code of Quebec states that ‘a person of full age may determine the nature of his funeral and the disposal of his body’ and that a minor may do so with the consent of their parent or guardian.^[9] Quebec’s courts have found that instructions left in accordance with this statute may be written or oral.^[10]

United States of America

4.14 Numerous legislative regimes exist across the United States allowing people to leave funeral and burial instructions that are binding on the person with the right to dispose of their body and/or to appoint a funeral and burial agent with the right to dispose of their body.^[11]

Funeral and burial instructions and/or agent

4.15 A number of statutes establish a hierarchy of people authorised to control the disposal of human remains. An agent appointed by the deceased for that purpose is at the apex, followed by the deceased’s spouse, then the deceased’s children, and so on. Instructions left by the deceased regarding their funeral or burial are binding on the person with the right to control their disposal.^[12]

4.16 The form instructions must take differs from state to state. With one exception, all states require written instructions and, of those states, most have specific requirements about the kind of document the instructions must be contained in.^[13] In Montana, a person can leave oral instructions if they record them, and two adult witnesses attest to the recording’s accuracy in writing.^[14]

4.17 The nature of the obligation to adhere to the deceased’s instructions also differs from state to state. In Texas, the person with the right to dispose of the body must only adhere to instructions to the extent that they or the estate can afford to do so.^[15] In Minnesota, the instructions must also be reasonable and lawful.^[16]

4.18 In Delaware, the right holder only has to adhere to instructions that are ‘reasonable under the circumstances’.^[17] Among the factors the right holder may take into account when deciding whether the instructions are reasonable under the circumstances are the size of the deceased’s estate, cultural or family customs and the deceased’s religious or spiritual beliefs.^[18]

Conclusion

4.19 Three statutory approaches to funeral and burial instructions can be found in Australia, Canada and the United States.

4.20 The first approach allows people to leave binding instructions in relation to cremation only. This approach has been adopted to varying degrees in most jurisdictions of Australia. In Victoria, it only applies to a very small class of people, and then only in relation to instructions not to cremate.

4.21 The second approach, implemented in two Canadian provinces, allows people to leave funeral and burial instructions that are binding on the person who disposes of the body.

4.22 In addition to allowing people to leave binding funeral and burial instructions, the third approach, found in the United States, allows people to appoint an agent to control the disposal of their body. Where the person has left instructions, the agent must follow those instructions. Otherwise the agent may dispose of the body as they wish.

1. Public Health Regulations 2012 (NSW) reg 77(2); Cremations Act 2003 (Qld) ss 7(1)–(2). The Queensland Act specifically overrides the common law to the extent that it allows a person to direct their representative to cremate their body and, in doing so, qualifies the representative’s right to decide how to dispose of the body: s 7(3).

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2. Cremation Act 1929 (WA) s 13(2).

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3. Cemeteries Act (NT) s 18(2); Burial and Cremation Act 2013 (SA) s 9(3); Cremation Act 1929 (WA) s 13(1).

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4. Cemeteries and Crematoria Regulations 2003 (ACT) reg 8(1)(c); Public Health Regulation 2012 (NSW) reg 77(1); Cremation Act 1929 (WA)
   
   s 8A(b).

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5. The Cemeteries and Crematoria Act 2003 (Vic) replaced the Cemeteries Act 1958 (Vic).

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6. Cemeteries and Crematoria Act 2003 (Vic) ss 143–144(a)–(b).

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7. Cremation, Interment and Funeral Services Act, SBC 2004, c 35, ss 5–6; Civil Code of Quebec LRQ c C-1991, art 42.

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8. Cremation, Interment and Funeral Services Act, SBC 2004, c 35, s 6(c). Compliance must also be consistent with the Human Tissue Gift Act, RSBC 1996: Cremation, Interment and Funeral Services Act, SBC 2004, s 6(b).

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9. Civil Code of Quebec LRQ c C-1991, art 42.

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10. Chrétien c. Chrétien [2010] QCCS 3341; Pelletier & al c. Pelletier & al [2004] REJB 55106.

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11. See, eg, Tex Health & Safety Code Ann § 711.002(a) (2014); Del Code Ann tit.12 § 265 (2015); Minn Stat § 149A.80(1) (2015).

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12. See, eg, Tex Health & Safety Code Ann § 711.002(a) (2014); Minn Stat § 149A.80(2) (2015).

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13. In New Jersey, instructions must be in a will: NJ Stat Ann § 45:27-22(a) (2015). In Alabama, instructions must be in an affidavit in substantially the same form as the statutory form and signed by a notary public: Ala Code § 34-13-11(b) (2015). In Iowa, a written declaration must be in substantially the same form as the statutory form and must be contained in or attached to a durable power of attorney for health care. This must be signed and dated in front of two witnesses or a notary public. If the declaration is witnessed, neither of the witnesses may be the representative named to handle the funeral arrangements: Iowa Code § 144C.6 (2014).

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14. Mont Code Ann § 37-19-903(3)(a) (2015).

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15. Tex Health & Safety Code Ann § 711.002(g) (2014).

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16. Minn Stat § 149A.80(1) (2015).

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17. Del Code Ann tit 12 § 265 (2015).

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18. Ibid.

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