Funeral and Burial Instructions: Consultation Paper

7. Options for reform

Introduction

7.1 Following the Commission’s consideration of the law relating to funeral and burial instructions in Australia, Canada, England, New Zealand and the United States,^[1] the Commission puts forward four options for reform, each of which would require legislative change:

• Option 1: Enshrine the common law position in legislation.

• Option 2: Oblige the person with the right to control the disposal of a body to make appropriate funeral and burial arrangements after taking relevant factors into account.

• Option 3: Allow people to leave binding funeral and burial instructions.

• Option 4: Allow people to appoint a funeral and burial agent.

7.2 The distinction between instructions to cremate and all other funeral and burial instructions, which is found in legislation across Australia, seems likely to have emerged in response to society’s discomfort with the move away from Christian burials.^[2] Among Victorians today, cremation is a more prevalent method of disposal than burial,^[3] and there appears to be no cogent reason to maintain this distinction.

7.3 When providing feedback on the options, you may wish to simply state that you are for or against them. However, as Options 2, 3 and 4 raise detailed questions about how best to give effect to them, the Commission would welcome additional comments on these options.

7.4 A combination of options could be adopted in Victoria. For example, the law could allow people to leave binding funeral and burial instructions and/or appoint a funeral and burial agent to control the disposal of their body. Where a deceased did not leave instructions, the person disposing of their body could be required to make appropriate arrangements after taking certain factors into account.

7.5 Alternatively, greater importance could be placed on the experience of survivors by making the deceased’s wishes just one of the factors the person in control of disposal must take into account when making appropriate funeral and burial arrangements, even where the deceased left clear written instructions that are at odds with the wishes of survivors. This regime could operate with or without the ability to appoint a funeral and burial agent.

7.6 It may be that stakeholders would like to maintain the common law position in Victoria, and the first question in this chapter allows stakeholders to indicate that this is their preference. The final question in this chapter invites proposals for reforms not covered in the options already provided.

Question

2 Is the law on funeral and burial instructions satisfactory as it is?

Option 1: Enshrine the common law position in legislation

7.7 The common law position in Victoria is that the executor or likely administrator of a deceased person’s estate has, subject to limited exceptions, an absolute right to decide how the body should be disposed of.^[4]

7.8 One advantage of this position is that it allows for a quick and often predictable outcome, which may limit the trauma experienced by survivors, even, or perhaps especially, where they are in conflict.^[5] Another advantage of this position is that the person with the right to dispose of the body is the same as the person with the obligation to pay for disposal.

7.9 Enshrining the common law position in legislation is likely to make the law more accessible and widely known, while maintaining these advantages.

Question

3 Should the common law position on funeral and burial instructions be enshrined in legislation?

Option 2: Oblige the person with the right to control the disposal of a body to make appropriate funeral and burial arrangements after taking relevant factors into account

7.10 In New Zealand, the person with the right to control the disposal of a body must make appropriate funeral and burial arrangements after taking into account the deceased’s wishes, the views of family members and the deceased’s cultural or religious background. They may also take into account the need to dispose of the deceased without undue delay.^[6]

7.11 The obligation for executors and likely administrators to exercise their authority in this way comes into effect when nothing is done to dispose of a body or a dispute arises.^[7] Where family and friends agree on a deceased’s funeral and burial arrangements, there is no need for the executor or likely administrator to intervene.

7.12 In C v Advocate General for Scotland,^[8] a Scottish court imposed a similar decision-making process on Scottish executors, albeit without regard to the will of the deceased. After noting that ‘executors have to be careful and aware that they have to act in the best interests of the estate’, Lord Brodie stated:

an analogous duty should be considered as being owed in respect of the personal interests of the deceased’s family in relation to [the] dignified treatment of his body and the making of appropriate funeral arrangements.^[9]

7.13 According to Lord Brodie, a Scottish executor has ‘custody of a body for the purpose of burial … in a quasi-fiduciary capacity, subject to the claims of near relatives.’^[10] Elaborating on this point, Lord Brodie stated:

I do not see [the Scottish executor] as having the right to arrange burial subject only to special circumstances which would appear to be the case with his English equivalent. No doubt there will be circumstances in which it will be appropriate for a Scottish executor to proceed to arrange for the conduct of the burial but only after consulting with the wishes of the near relatives. In the event of divergence of view I can see that the executor may have to come to a decision but only after giving consideration to such proposals as the family have to make. The executor who merely consulted his own preferences would be failing his duties.^[11]

7.14 Adopting this option would ensure that, in the event of a dispute, the views of all interested parties were taken into account. Considering the wishes of survivors alongside the wishes of the deceased may assist with the grieving process of survivors while also recognising the autonomy of the deceased.

Question

4 Should the law oblige a person with the right to control the disposal of a body to make appropriate funeral and burial arrangements after taking into account:

(a) the wishes of the deceased

(b) the views of the family

(c) the deceased’s cultural or religious background

(d) the need to dispose of the deceased without undue delay

(e) the capacity of the estate to cover the reasonable costs of disposal and/or

(f) any other factors?

Specific considerations

Duty to seek out the views of others

7.15 In New Zealand, the person with the right to dispose of the body is not obliged to seek out the views of others when making funeral and burial arrangements.^[12] As the majority stated in Takamore v Clarke:

the personal representative should take account of the views of those close to the deceased, which are known or conveyed to him or her. This will include views that arise from customary, cultural and religious practices, which a member of the deceased’s family … considers should be observed … There is no requirement, however, for the personal representative to engage in consultation. That may not be practical in circumstances of urgency.^[13]

7.16 During the Commission’s preliminary consultations, however, a representative from the Victorian Aboriginal Legal Service said that where there is conflict about funeral and burial arrangements, it is important to reach consensus as a family.^[14] One advantage of imposing a duty to seek out the views of others on the person controlling the disposal of the body is that it may facilitate agreement among the family members about how to dispose of the body.

Question

5 If the law obliges a person with the right to control the disposal of a body to make an appropriate decision after taking into account certain factors, should that person have a duty to seek out the views of people close to the deceased before making a decision?

Option 3: Allow people to leave binding funeral and burial instructions

7.17 Adopting this option would allow a person with legal capacity to leave binding instructions in relation to the method and place of the final disposal of their body, as well as any associated rituals.

7.18 The obligation to carry out the instructions would fall on any survivor controlling the disposal of the body, not just the person with the right to dispose of the body. This is because it is often the case that a person other than the person with the right to dispose of the body is tasked with arranging the funeral and burial. For example, an adult child might arrange their mother’s funeral instead of the lawyer appointed by the mother to be her executor.

7.19 Allowing people to leave binding funeral and burial instructions would reflect our community’s emphasis on individual autonomy. Moreover, it would allow people to ensure that all of their identities and relationships were reflected in their funeral and burial arrangements in accordance with their priorities.

Question

6 Should people be able to leave legally binding funeral and burial instructions?

Specific considerations

Exceptions

7.20 As discussed in Chapter 3, courts in the United States have recognised a range of circumstances in which validly made funeral and burial instructions do not have to be adhered to by the person disposing of the body.^[15] These include where the person’s later conduct indicated that they had changed their mind, and where performance was impossible.

7.21 Chapter 4 outlines the circumstances in which legislation in Canada and the United States allows the person with the right to dispose of the body to depart from funeral and burial instructions.^[16] In addition to the circumstances identified above, they include the circumstance where complying with the instructions would be impractical, unlawful, unreasonable or excessively costly.^[17]

7.22 Inquiries by other law reform commissions into funeral and burial instructions have determined that instructions should also not be legally binding if they are offensive or indecent, or if they could not be located within a reasonable time after death.^[18]

Form of instructions

7.23 The form instructions must take differs across jurisdictions that recognise funeral and burial instructions. While almost all states in the United States require written instructions, in Colorado they need only be written and signed,^[19] whereas in Texas they must be witnessed by a notary public.^[20] In New Jersey, they must be written in a will.^[21]

7.24 In Quebec, Canada, a person’s oral instructions must be followed, provided the intention of the deceased was clear and unequivocal.^[22] In Montana, a person can leave recorded oral instructions as long as they are accompanied by a written document in which two adult witnesses attest to the accuracy of the recording.^[23]

7.25 In Victoria, a person can orally object in the presence of two witnesses during their last illness to the subsequent removal of tissue from their dead body.^[24] A person can orally consent to the removal of their tissue in the same manner but, as explained at [5.20], their consent can be overridden by their next of kin.^[25]

7.26 Reducing the steps people must take in order to leave valid funeral and burial instructions allows people to make such instructions more easily. This is particularly important for marginalised communities, including people with limited English language skills and people who are unfamiliar with the formal requirements of our legal system.

7.27 However, reducing the steps people must take to produce valid instructions also increases the risk that the instructions may not reflect the person’s true wishes. As Justices Tipping, McGrath and Blanchard observed in relation to oral wishes in Takamore v Clarke, for example, a court may ‘need to consider the possibility that something was said out of a desire to please the person to whom the deceased was speaking’.^[26]

Age of the person leaving instructions

7.28 While most jurisdictions that uphold funeral and burial instructions require the person leaving instructions to be over 18,^[27] in Quebec people under the age of 18 may leave instructions with the consent of their guardian.^[28]

7.29 In Borrows v HM Coroner for Preston, a 15-year-old boy’s phobia of worms and thus burial was one of the elements considered by the judge when awarding the right of disposal to his uncle who wanted to cremate him, rather than his mother who wanted to bury him.^[29]

7.30 In Victoria, a person under 18 can consent to medical treatment if they have sufficient intellectual capacity and emotional maturity to understand the nature and consequences of the medical treatment.^[30] A person under 18 can also make a will if they are married or have obtained a court order authorising the making of a will.^[31] A 16-year-old can register to be an organ donor,^[32] and a 14-year-old’s consent is needed before Medicare can give their medical information to their parents.^[33]

Question

7 If people are able to leave legally binding funeral and burial instructions:

(a) In what circumstances should a person controlling the final disposal of a body be exempt from carrying out the instructions?

(b) Should there be a requirement that the instructions be:

(i) contained in a will

(ii) in written form, or

(iii) in any form as long as the expression of intention is reliable?

(c) Should children be allowed to leave instructions and, if so, at what age and/or in what circumstances?

Option 4: Allow people to appoint a funeral and burial agent

7.31 In a number of jurisdictions in the United States, people are allowed to appoint a funeral and burial agent to control the disposal of their body after they die. The agent must comply with the deceased’s instructions where instructions were left, but may otherwise decide where and how to dispose of the body.^[34] See Appendix B for an example of the prescribed agent appointment form in Alaska.

7.32 Allowing people to appoint a funeral and burial agent would enable them to appoint the person most suited to the role in the circumstances. Unlike executors who are often chosen for their financial or legal skills, a funeral and burial agent might be chosen for their peacekeeping skills within the family, or for their religious status. If a person has not yet been in a relationship for two years, they may wish to appoint their partner as their agent, as their partner would not be recognised as their unregistered domestic partner under Victorian law.^[35] This may be particularly important if they are in a relationship their parents do not approve of and the right to bury their body would go to their parents upon their death.

7.33 Allowing people to appoint a funeral and burial agent without also allowing them to leave binding instructions would address the concern that people cannot know every eventuality that may arise upon their death. It could be, for example, that carrying out a person’s instructions inadvertently causes their family members great distress and that, had the person been aware of that before their death, they would have left different instructions.

Question

8 Should people be able to appoint a funeral and burial agent to control the final disposal of their body?

Specific considerations

Making the appointment

7.34 In some jurisdictions in the United States, a person can nominate a funeral and burial agent who does not need to consent to the nomination before the person’s death. If the nominated agent does not wish to act, they can simply opt out. This is the case in Delaware, where a person can also nominate an alternative agent in case the primary agent is ‘unwilling or unable to act.’^[36]

7.35 In other states, the agent must sign the appointment form before the person dies in order for the appointment to be valid.^[37] In Texas, a person can appoint a number of alternative agents in case their preferred agent ‘dies, becomes legally disabled, resigns or refuses to act’,^[38] and each of the alternative agents is also required to sign the appointment form before the person’s death.^[39] If a person’s nominated agents fail to act for whatever reason, control of the body goes to the next person in the statutory hierarchy, which is the spouse, followed by the children, and so on.^[40]

Forfeiting the appointment

7.36 A funeral and burial agent will be deemed to have forfeited the right to control the disposal of a body in a number of jurisdictions in the United States if they are dead, lack legal capacity, refuse to act or are separated or estranged from the deceased.^[41]

7.37 In some states, the right is forfeited if the agent is charged with the murder or manslaughter of the deceased.^[42] In Ohio, the right is revived if the charges are dropped or the person is acquitted.^[43] In New Hampshire, an agent need only be arrested for the deceased’s murder or manslaughter to forfeit the right.^[44]

7.38 In New Jersey, the agent will forfeit the right if, at the time of the person’s death, the person had an intervention order in place against the agent.^[45]

Funeral and burial costs

7.39 As noted above in relation to Option 1, the person with the right to bury a deceased person’s body is the same as the person with the obligation to pay for the deceased person’s funeral and burial. This person is obliged to use the deceased’s estate to pay for the reasonable costs of disposal, which are determined in accordance with the value of the deceased’s estate,^[46] unless someone else chooses to pay for it. The obligation to pay for the funeral and burial out of the deceased’s estate arises even where a stranger intervenes as a matter of necessity to dispose of the body without the personal representative’s knowledge.^[47]

7.40 Allowing people to appoint a funeral and burial agent would upset the symmetry that currently exists between the person with the right to dispose of the body and the person with the obligation to pay for disposal. Jurisdictions in the United States have adopted a range of approaches to address this issue. In New York, the agent may recover reasonable funeral expenses from the executor or administrator of the estate.^[48] In Mississippi, the deceased must have left instructions in a prepaid contract that has been fully paid, or the instructions will not be valid.^[49] In Rhode Island, the agent must agree to ‘ensure payment for all outstanding expenses’,^[50] which presumably means they are liable where the deceased has not set aside funds for their funeral and burial, or the value of their estate is insufficient to cover the costs.^[51]

Question

9 If people are able to appoint a funeral and burial agent:

(a) Should they be required to obtain the agent’s consent for the appointment to be valid?

(b) In what circumstances should the agent forfeit the right to control the disposal of the body?

(c) Who should be liable for the costs of disposal and what, if any, measures are needed to make the arrangement practical?

Alternative options

7.41 The above four options were selected from the range of approaches that emerged out of the Commission’s cross-jurisdictional review of common law and legislative responses to funeral and burial disputes.

7.42 The Commission also welcomes proposals for alternative options. Any proposal must address the central concern of the Commission, which is how best to incorporate the wishes of the deceased into the process by which funeral and burial arrangements are made.

Question

10 Do you have an alternative option for reform (other than those identified in Questions 3, 4, 6 and 8) that you would like to see adopted in Victoria?

1. See Chapters 3 and 4.

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2. Rosalind F Croucher, ‘Disposing of the Dead: Objectivity, Subjectivity and Identity’ in Disputes and Dilemmas in Health Law (Federation Press, 2006) 324, 330.

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3. In 2012–13 in Victoria, 67% of disposals were cremations: Simon Evans, ‘Cremation Favoured in Tough Economy’, The Australian Financial Review (online), 4 September 2013 <http://www.afr.com/business/cremation-favoured-in-tough-economy-20130903-je3o4>.

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4. See [3.5] and [3.18].

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5. Heather Conway and John Stannard, ‘The Honours of Hades: Death, Emotion and the Law of Burial Disputes’ (2011) 34 UNSW Law Journal 860, 883.

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6. Takamore v Clarke [2012] NZSC 116 [152], [156].

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7. See [3.35].

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8. C v Advocate General for Scotland [2011] CSOH 124.

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9. Ibid [60] (italics added).

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10. Ibid [63].

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11. Ibid.

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12. Takamore v Clarke [2012] NZSC 116.

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13. Ibid [156].

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14. Preliminary consultation with Victorian Aboriginal Legal Service (6 August 2015).

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15. See [3.47].

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16. See [4.12] and [4.17]–[4.18].

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17. This last exemption is expressed differently in different states. In Texas, the person controlling the disposal of a body must follow the deceased’s instructions to the extent that the deceased’s estate or the agent is ‘financially able to do so’: Tex Health & Safety Code Ann § 711.002(g) (2014). In Maine, it is to the extent that the deceased ‘left resources for the purpose of carrying out those wishes’: Me Rev Stat Ann tit 22 § 2843-A(5) (2015). In New York, it is ‘to the extent lawful and practicable, including consideration of the financial capacity of the decedent’s estate and other resources made available for disposition of the remains’: NY Public Health Law § 4201(2)(c) (2015).

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18. Ontario Law Reform Commission, Report on Administration of Estates of Deceased Persons (1991) 40; Queensland Law Reform Commission, A Review of the Law in Relation to the Final Disposal of a Dead Body, Final Report No 69 (2011) xiv (Recommendation 5-1).

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19. Colo Rev Stat § 15-19-104 (2015), § 15-19-107 (2015).

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20. Tex Health & Safety Code Ann § 711.002 (2014). A ‘notary public’ is generally defined as an officer commissioned by the government to serve as an unbiased and impartial witness. Notarisation on a document certifies that the person whose signature is entered on the document personally appeared before the notary, established his or her identity, and personally signed the document in the presence of the notary.

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21. NJ Stat Ann § 45:27-22(a) (2015).

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22. Civil Code of Quebec LRQ c C-1991, art 42; see also Chrétien c. Chrétien, 2010 QCCS 3341 [10], [31]; Pelletier & al c. Pelletier & al, REJB 2004-55106.

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

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24. Human Tissue Act 1982 (Vic) s 26(3)(b).

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25. Ibid ss 26(1)(c)(ii), 26(2)(c)(ii).

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26. Takamore v Clarke [2012] NZSC 116 [168].

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27. Ark Code Ann § 20-17-102(d)(1) (2015); Conn Genn Stat § 45a-318(a)(1) (2014); Del Code Ann, Title 12, Ch. 2, § 265 (2015).

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

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29. Borrows v HM Coroner for Preston [2008] EWHC 1387 (QB).

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30. Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218 [6].

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31. Wills Act 1997 (Vic) ss 6, 20.

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32. Australian Government, Department of Human Services, Australian Organ Donor Register (4 July 2014) <http://www.humanservices.gov.au/customer/services/medicare/australian-organ-donor-register>.

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33. Australian Government, Office of the Australian Information Commissioner, Privacy Fact Sheet 21: Young People and the eHealth Record System (September 2014) 2. <http://www.oaic.gov.au/privacy/privacy-resources/privacy-fact-sheets/health-and-ehealth>

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34. See [4.15].

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35. Administration and Probate Act 1958 (Vic) s 3(1) (‘unregistered domestic partner’).

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36. Del Code Ann § 265 (2015).

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37. Tex Code Ann § 711.002(b) (2014).

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38. Ibid.

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39. Ibid.

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40. Tex Code Ann § 711.002(a) (2014).

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41. Ala Code § 34-13-11(b)(1)-(3) (2015); Ind Code § 25-15-9-18(3) (2015); NJ Stat Ann § 45:27-22(1) (2015).

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42. Cal Health and Safety Code § 7100(b)(1) (2015); Me Rev Stat Ann § 2843-A(2) (2015); Ohio Rev Code Ann § 2108.77(A)(1) (2015); Utah Code § 58.9.603(2)(a) (2015). Fla Stat § 497.005(39)(c) (2015); NY Public Health Law § 4201(2)(e) (2015).

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43. Ohio Rev Code § 2108.77(B)(2) (2015).

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44. NH Rev Stat Ann § 290:17(VI) (2015); Or Rev Stat Ann § 97.130(9) (2015); Wash Rev Code Ann § 68.50.160(4) (2015).

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45. NJ Stat Ann § 45:27-22(a)(1) (2015).

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46. Manktelow v The Public Trustee [2001] WASC 290; Rees v Hughes [1946] KB 517, 528 (Tucker LJ). See also Sharp v Lush (1879) 10 Ch D 468.

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47. Lord Goff of Chieveley and Gareth Jones, The Law of Restitution (Sweet & Maxwell, 4th ed, 1993) 383.

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48. NY Public Health Law § 4201(2)(c) (2015).

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49. Miss Code Ann § 75-63-25(1) (2015).

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50. Rhode Island General Laws § 5-33.3-4(a) (2015).

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51. RI Gen Laws § 5-33.3-4(a).

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