Funeral and Burial Instructions: Report (html)

1. Introduction

Origins

1.1 On 25 June 2015, the Commission initiated a community law reform project on funeral and burial instructions.

1.2 One of the functions of the Commission stated by legislation is to examine, report and make recommendations on relatively minor legal issues of general community concern.^[1] ‘Relatively minor’ means limited in size and scope, but does not mean that the subject matter of an inquiry is insignificant. Often, the matter is of substantial personal and community significance.

1.3 The topic of funeral and burial instructions was put to the Commission by a community member. A recently deceased member of her family had said to 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 family members of the deceased, chose not to abide by those instructions, as was their right under Victorian law. This caused significant distress for the community member who told the Commission of the devastating impact on her family.

1.4 The community member was of the view that the law should change so that people are able to leave binding instructions about what happens to their body when they die. At present, the deceased’s executor (if they have a will) or likely administrator (if they do not have a will) has near-absolute authority over how the deceased’s body ^[2] and ashes^[3] are disposed of, irrespective of any instructions the deceased may have left.^[4]

1.5 In its preliminary investigations, the Commission discovered that few Victorians knew that their instructions in relation to the disposal of their body were not legally binding. Nor did they know who had the right to dispose of their body or what that right entailed.

1.6 The proposition that funeral and burial instructions are not binding derives from 19th century England, when the law assumed people wished to have a Christian burial, and when cremation was regarded as distasteful.^[5] In Williams v Williams, Justice Kay held:

‘If there be no property in a dead body it is impossible that by will or any other instrument the body can be disposed of.’^[6]

1.7 When considering whether to initiate this inquiry, the Commission observed that the society in which this law is now implemented is much more diverse. Many people reject religion or have no religious beliefs. Blended^[7] and cross-cultural families are commonplace, as is support for individual autonomy. A corresponding diversity of opinion now exists about how a person should be honoured through their funeral and burial arrangements.

1.8 Also persuasive in the Commission’s deliberations were the views of judges who questioned the adequacy of the law’s response to funeral and burial disputes. In the New South Wales case of Warner v Levitt, Justice Brownie observed:

It is … an unhappy fact that the parliament has not seen fit to enact any statute to deal with the topic so that judges have had to deal with cases as and when they are brought forward, on very short notice, on imperfect evidentiary material, and in circumstances which all concerned find distressing.^[8]

1.9 A review of case law over the past 30 years revealed that 47 funeral and burial disputes had been determined by Australian courts, seven of which had taken place in Victoria.^[9] However, the Commission’s preliminary investigations revealed that the actual number of disputes within the community was much higher.^[10]

1.10 Consequently, the Commission determined that a review of the law on funeral and burial instructions would be of significant benefit to the community.

1.11 The scope of the Commission’s terms of reference was limited to determining the extent to which the law should uphold a person’s instructions regarding their final disposal. Matters such as the law relating to tissue donation fall outside the terms of reference.

1.12 The terms of reference can be found on page viii.

Previous reviews by law reform commissions

1.13 Reviews by other law reform commissions were of great assistance to the Commission in its preliminary investigation into the issue of funeral and burial instructions. These include:

• the Queensland Law Reform Commission^[11]

• the Law Reform Commission of Western Australia^[12]

• the Law Commission of New Zealand^[13]

• the Ontario Law Reform Commission.^[14]

Our process

1.14 The Commission Chair, the Hon. Philip Cummins AM, established a Division which he chaired. The Division members were Liana Buchanan, Helen Fatouros, Bruce Gardner PSM, Dr Ian Hardingham QC, His Honour David Jones AM, Eamonn Moran PSM QC, Alison O’Brien and the Hon. Frank Vincent AO QC.

Submissions

1.15 In November 2015, the Commission published a consultation paper that identified current law and suggested different options for reform. The consultation paper invited members of the community who had been affected by the law, and/or had a view on what the law should be, to make a submission. The deadline for submissions was 21 December 2015.

1.16 The Commission received 39 submissions, the majority of which are available on the Commission’s website. A list of the stakeholders who made submissions is at Appendix A.

Consultations

1.17 Throughout the course of this inquiry, the Commission undertook 31 formal consultations with individuals and groups that had particular knowledge or experience in this area.

1.18 Consultations were undertaken in metropolitan Melbourne and regional Victoria. Commission staff met with funeral directors, grief counsellors, faith leaders, court representatives, lawyers, alternative dispute resolution practitioners, academics, representatives from government agencies, and people and groups who had been affected by the law relating to the arrangement of funerals and burials.

1.19 A list of individuals and organisations the Commission consulted with during the course of this community law reform project is at Appendix B.

Survey

1.20 The Commission conducted an online survey that was directed to people who had an interest in funeral and burial planning and/or had been involved in a funeral and burial dispute. The survey aimed to find out whether the current law in Victoria aligned with community values and, if not, the community’s views about what legal regime should

take its place.

1.21 The survey received 311 responses. The questions can be found in Appendix C.

Structure of the report

1.22 This report is divided into ten chapters.

1.23 Chapter 2 outlines the law on funeral and burial wishes in Australia and four comparable foreign jurisdictions.

1.24 Chapter 3 examines the reasons for, and common features of, funeral and burial disputes. Several case studies are included to demonstrate the nature of these disputes and the harm they cause.

1.25 Chapter 4 reviews the values that underpin the views expressed by community members in relation to funeral and burial instructions.

1.26 Chapter 5 considers the community’s views on the law reform options identified in the Commission’s consultation paper. The Commission concludes that an Act enabling people to leave binding funeral and burial instructions and/or appoint a funeral and burial agent should be adopted in Victoria.

1.27 Chapter 6 sets out the details of the Commission’s proposed legislative regime after examining community feedback on the issues under consideration.

1.28 Chapter 7 explores the interaction between the Commission’s proposed legislative regime and the requirements for lawfully disposing of a body in Victoria.

1.29 Chapter 8 considers which court and/or tribunal should hear funeral and burial disputes under the Commission’s proposed legislative regime.

1.30 Chapter 9 assesses the role mediation could play in assisting people to resolve funeral and burial disputes.

1.31 Chapter 10 concludes this report.

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

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2. The deceased’s executor or likely administrator may dispose of the body in any manner they wish provided that the disposal of the body is not unlawful, wholly unreasonable or exercised in a manner that excludes family and friends from reasonably and appropriately expressing their affection for the deceased. See Leeburn v Derndorfer (2004) 14 VR 100, 104; Milanka Sullivan v Public Trustee for the Northern Territory of Australia (Unreported, Supreme Court of the Northern Territory, Gallop AJ, 24 July 2002) 18 approving Grandison v Nembhard (1989)

   4 BMLR 140; Smith v Tamworth City Council (1997) 41 NSWLR 680.

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3. This is subject to the qualification that ashes should be treated with appropriate respect and reverence: Leeburn v Derndorfer (2004)

   14 VR 100, 106–7 [27].

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4. Chapter 2 sets out the law on funeral and burial instructions in more detail.

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5. R v Price (1884) 12 QBD 247, 253.

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6. (1882) 20 Ch D 659, 665.

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7. A blended family is a family made up of the members of separate families, usually as a result of the parents’ repartnering.

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8. (1994) 7 BPR 15,110, 15,110.

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9. See Appendix D for a list of the funeral and burial disputes that have been determined by Australian courts over the past 30 years. One more case has been determined since the Commission’s preliminary investigations (Donahue v Morleys Funerals Pty Ltd [2016] QSC 137).

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10. Preliminary consultations with Austin Health (3 August 2015), Australian Funeral Directors Association (4 August 2015), Victorian Aboriginal Legal Service (6 August 2015). 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, ‘Millions leaving it too late to discuss dying wishes’

    (12 May 2014) <http://dyingmatters.org/news/millions-leaving-it-too-late-discuss-dyingwishes>.

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11. Queensland Law Reform Commission, A Review of the Law in Relation to the Final Disposal of a Dead Body, Final Report No 69 (2011).

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12. Law Reform Commission of Western Australia, Aboriginal Customary Laws, Final Report No 94 (2005).

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13. Law Commission (New Zealand), Death, Burial and Cremation: A New Law for Contemporary New Zealand, Report No 134 (2015).

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14. Ontario Law Reform Commission, Administration of Estates of Deceased Persons, Report (1991).

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