Funeral and Burial Instructions: Report (html)

7. Right of interment and cremation

Introduction

7.1 The requirements for lawfully disposing of a body in Victoria are set out in the Cemeteries and Crematoria Act 2003 (Vic) (the Act) and the Cemeteries and Crematoria Regulations 2015 (Vic) (the Regulations).

7.2 The two most common forms of disposal are burial (or ‘interment’ in the Act and Regulations) and cremation.^[1] Permission must be obtained from a cemetery trust to bury or cremate a body in a public cemetery. Burying or cremating a body somewhere other than a public cemetery is permitted, as are methods other than burial or cremation, as long as permission is obtained from the relevant office holder(s).^[2]

7.3 The Commission was told throughout the course of its inquiry that a number of funeral and burial disputes involved the deceased’s executor or likely administrator and the rights of different actors under the Act and Regulations.^[3]

7.4 In the case of burial in a public cemetery, the Act and Regulations stipulate that the right of interment holder, who is usually the person who paid for the plot,^[4] has control over activities relating to the plot (including burial and memorialisation),^[5] subject to the requirement to obtain permission from the cemetery trust.^[6]

7.5 In the case of cremation, if a person’s application to cremate the body is approved, the cremated remains must be given back to that person by the public cemetery, unless the applicant provides written permission for another person to collect them.^[7]

7.6 Where the right of interment holder, or the applicant in the case of cremation, is not the same as the person with the right to control the disposal of the body under common law, disputes can arise. For example, a right of interment holder might not grant permission for

the deceased’s executor to install a headstone. Or the applicant for cremation might not allow the executor to collect the deceased’s ashes from the cemetery.

7.7 This chapter sets out the requirements for lawfully disposing of a body in more detail before providing accounts of disputes that have arisen between an executor or likely administrator and the right of interment holder or applicant for cremation.

7.8 The Commission considers that the Regulations should be amended to reflect the fact that the person with the right to control the deceased’s funeral and burial arrangements has the highest claim to the ashes and thus, where that person was not the applicant for cremation, that person should also be allowed to collect the ashes. In addition, the Commission proposes changes to the Regulations that would enhance people’s awareness of the law when applying to bury or cremate a body.

Right of interment

Law

Obtaining the right

7.9 It is a common misconception that a person owns a plot after purchasing a right of interment.^[8] What is actually purchased is the right to determine who can be buried in the plot, and to establish or alter a memorial at the plot.^[9] In addition, the right of interment holder is entitled to remove or reposition body parts or cremated human remains from the plot,^[10] or endorse or object to an application to exhume a body.^[11]

7.10 Before acting on any of these entitlements, the right of interment holder must obtain the permission of the relevant cemetery trust.^[12] Subject to the requirement to obtain permission and any additional conditions set by the cemetery trust, these entitlements grant the right of interment holder exclusive authority over the plot in relation to burial and memorialisation.^[13]

7.11 The right of interment holder is most often determined by the source of the payment, meaning that if a funeral director or lawyer pays for the right of interment on behalf of their client, their client is the right of interment holder.^[14]

7.12 The right of interment holder may also have inherited the right.^[15] If a person can demonstrate to a cemetery trust that they are a beneficiary under the original right holder’s will or, where there is no will, in accordance with the rules of intestacy,^[16] then the cemetery trust will record them as a right of interment holder.^[17]

7.13 Multiple right of interment holders may exist where the right is inherited by more than one person, such as children who inherit the estate of their parents in equal shares.

7.14 The Act stipulates that the right of interment may be exercised jointly or severally. However, the Department of Health and Human Services Cemeteries and Crematoria Unit advises cemetery trusts to obtain the consent of all right holders in order to avoid situations where right holders undertake contradictory actions.^[18] If one right holder successfully applies to erect a headstone for example, there is nothing to prevent another right holder from successfully applying to remove it.^[19]

Applying to bury a body

7.15 Before burying a body in a plot, a person must apply to the cemetery trust for approval.^[20] The applicant may be the right of interment holder or any other person.^[21] Where the applicant is not the right of interment holder, the application form asks if the right of interment holder consents to the application.^[22]

7.16 If satisfied that the application has been filled out correctly,^[23] the cemetery trust will authorise the burial. This authorisation may contain any terms and conditions the cemetery trust considers appropriate.^[24]

7.17 An applicant is merely authorised, by the cemetery trust, to bury a body in a plot as long as the right of interment holder consents. The applicant has no further rights or entitlements in relation to the plot.^[25]

Retaining the right

7.18 A right of interment over a plot containing bodily remains or body parts is perpetual.^[26]

7.19 While there is no requirement that ashes be interred in the grounds of a public cemetery,^[27] some people do so.^[28] A right of interment over a plot that contains ashes is either perpetual or for a limited tenure of 25 years.^[29]

7.20 When a person who does not hold the right of interment wishes to do something to a plot after the burial of a body or interment of ashes has occurred, such as erecting or amending a headstone, the right of interment holder must consent.^[30]

Responses

7.21 The Commission was provided with a number of accounts of disputes between an executor, or likely administrator, and the right of interment holder.

7.22 In one case, the deceased’s executor (the deceased’s daughter) was unsuccessful in seeking permission from the right of interment holder (the deceased’s son) to erect a headstone in accordance with the deceased’s wishes.

7.23 The deceased had said that she wanted to be buried with her brother who had predeceased her. The deceased’s son was the right of interment holder over his uncle’s plot. Although he gave his permission for his mother to be buried with his uncle as she had asked, he refused to allow his sister to install a headstone in accordance with their mother’s wishes.^[31]

7.24 In another case, the son of the deceased intended to erect a headstone over his father’s grave that referred only to his father’s first wife (the son’s mother) and not his father’s second wife. The son, who was both his father’s executor and the beneficiary of his father’s estate, believed he was the right of interment holder.

7.25 The second wife of the deceased, who was married to the deceased at the time of his death, challenged the son’s claim that he was the right of interment holder. Although the son had inherited his father’s estate, the second wife claimed that the estate did not include the right of interment because she and her husband bought two adjoining plots with money from their joint bank account. As such, she believed that she and her husband were right of interment holders over both plots, not individual right holders over each plot, and thus that she was the sole remaining right holder over both plots.

7.26 Before buying the plots with his second wife, the deceased had bought two other adjoining plots following the death of his first wife. He buried his first wife in one and, at that time, intended that he would be buried in the other.^[32]

7.27 The Commission was told that disputes of this kind are distressing for those involved^[33] and that people may be unable to grieve properly or move on from the deaths of their loved ones because of the ongoing dispute.^[34]

7.28 Some observed that they had not understood what they were giving up when they allowed the body to be buried in the plot controlled by the right of interment holder.^[35]

7.29 One woman told the Commission that while her family was making funeral and burial arrangements for her uncle, the funeral director engaged by her family approached her brother to complete a form and pay for the burial. The woman stated that the funeral director never explained to her the purpose and effect of signing the form and paying the fee. It was only when the woman sought to install a headstone on the grave that she learnt that her brother was the right of interment holder and, as such, could prevent her from installing the headstone.^[36]

7.30 Another woman told the Commission that, although her brother had not spoken to their father for two years at the time of their father’s death, her brother went to the local cemetery the morning after his death and purchased a plot. Unaware of the legal ramifications of allowing their father to be buried in the plot her brother had purchased, the woman allowed the burial to go ahead.

7.31 The father had granted his daughter the power to make medical decisions on his behalf. However, as he died without a will, both of his children were contenders for the role of likely administrator.

7.32 For the following decade, the woman unsuccessfully sought to erect a headstone on her father’s grave. The woman said she was sexually abused by her brother as a child and yet, as the cemetery trust would only follow instructions from him, she had been compelled to repeatedly contact him to negotiate the installation of the headstone.^[37]

Conclusions

7.33 The law is that the person with the right to control the disposal of the body has the right to arrange the funeral and select the method of disposal,^[38] and the right of interment holder has the right to determine who will be buried in their plot and to establish or alter a memorial on that plot.^[39] The right of interment holder may also endorse or object to an application to exhume a body from the plot.^[40]

7.34 As earlier stated, the law governing cemeteries and crematoria in Victoria was developed with the following objectives in mind—allowing people to access cemetery and crematoria services, treating human remains with dignity and respect, and ensuring the effective and efficient operation of cemetery trusts.^[41] The Commission’s proposed legislative regime allows this to prevail.

7.35 The Commission considered requiring the applicant for burial to obtain the consent of the person with the right to control the arrangements before being allowed to bury the body. It decided against this as the requirement might unreasonably delay the burial.

7.36 Therefore, under the Commission’s proposed legislative regime, the person with the right to control the deceased’s funeral and burial arrangements might not be able to bury the body in a particular plot if they are not also the right of interment holder. Or, if they are given permission to bury the body in a plot for which they are not the right of interment holder, they might not be able to memorialise the deceased in the manner they choose.

7.37 The Commission considers that the application for burial form should make clear to the applicant that, once the deceased is buried in the right of interment holder’s plot, the right of interment holder will be able to control memorialisation and, to an extent, exhumation.^[42]

7.38 Upon becoming aware of this, an applicant who was the person with the right to control the arrangements but not the right of interment holder, might choose to bury the body in another plot, assuming that this was not contrary to the deceased’s instructions.

Recommendation

22 The Cemeteries and Crematoria Regulations 2015 (Vic) should be amended so that the Application for Interment Authorisation form makes clear to the applicant the entitlements of the right of interment holder in relation to memorialisation and exhumation.

Cremation

Law

7.39 Before cremating a body in a crematorium in a public cemetery, a person must apply to the cemetery trust for permission to cremate the body.^[43] If the cemetery trust is satisfied that the person has properly filled out the application form, it will authorise the cremation.^[44]

7.40 Once the body is cremated, the cemetery trust must ensure the ashes are available for collection within two working days of the date of cremation.^[45] Ashes can only be released to the applicant for cremation, unless they appoint an agent to collect the remains. Where both an applicant for cremation and their agent have died, the remains will be released by the cemetery trust to the cremated deceased’s nearest surviving relative.^[46]

7.41 If the ashes are not collected, the cemetery trust must hold the cremated remains for

12 months from the date of cremation. After 12 months, the cemetery trust may dispose of the ashes provided that at least three months prior to the expiration of this period, the cemetery trust took reasonable steps to notify the applicant for cremation, agent or nearest surviving relative of the deceased of their intention to dispose of the ashes.^[47]

Responses

7.42 The Commission was made aware of two disputes involving an executor and an applicant for cremation.

7.43 In contemplation of her impending death, a woman wrote a will in which she appointed her father as her executor and stipulated that she wanted her husband to scatter her ashes in a particular location.

7.44 A few weeks after the deceased’s cremation, the executor asked the deceased’s husband, who was the applicant for cremation, to collect the ashes. The husband said he was not ready.

7.45 Around six weeks after his wife’s cremation, the husband called the cemetery trust to arrange a time to collect the ashes. He was informed that the executor had already collected them after telling the cemetery trust that the husband was too distraught to collect them.

7.46 The husband has since asked the executor to return the ashes, but he has refused, stating that as the executor of his daughter’s will, he has a superior claim to the ashes.^[48]

7.47 In the other case recounted to the Commission, a woman remarried shortly before her death. She had appointed her second husband and her adult children as joint executors of her estate. She had said that she wanted to be cremated and to have her ashes scattered ‘somewhere beautiful’.

7.48 The second husband was the applicant for cremation and after collecting the ashes he refused to relinquish them so they could be scattered. The second husband has since remarried and, as the deceased’s daughter told the Commission, ‘I don’t know to this day where my mum’s remains are.’^[49]

Conclusions

7.49 While the Act and Regulations entitle an applicant for cremation to collect the ashes, the person with the right to control the disposal of the deceased’s body has the right to dispose of the deceased’s remains.

7.50 Under the Commission’s proposed legislative regime, the Regulations would be amended to expressly recognise the superior entitlement of the person with the right to control the funeral and burial arrangements and, consequently, enable the person to collect the ashes in addition to the applicant for cremation. The application for cremation form should also be amended to reflect this.^[50]

7.51 As was the case for burial, the Commission considered requiring the applicant for cremation to obtain the consent of the person with the right to control the deceased’s funeral and burial arrangements before being allowed to cremate the body. The Commission rejected this requirement because of its potential to unreasonably delay cremations and thereby cause distress to the bereaved.

Recommendation

23 The Cemeteries and Crematoria Regulations 2015 (Vic) should be amended

so that:

a) the person with the right to control the deceased’s funeral and burial arrangements:

(i) is recognised as having the highest claim to the cremated remains

(ii) may collect the cremated remains in addition to the applicant and

b) the Application for Cremation Authorisation form makes clear to the applicant the entitlements of the person with the right to control the deceased’s funeral and burial arrangements, including that they may collect the cremated remains.

Further review

7.52 A number of burial site disputes recounted to the Commission fell outside the terms of reference for this inquiry because they did not involve an executor or likely administrator. Accordingly, the Commission did not consider them as part of its inquiry. They are included in this section as they raise related issues to those considered in the inquiry.

7.53 One such dispute was between the children of a man who had died several years earlier and their stepfather who continued to refuse their requests to erect a headstone on their father’s grave. The children’s mother remarried shortly after their father’s death, and then died shortly after that. Upon the mother’s death, the right of interment over the children’s father’s grave went to their stepfather. Although the children are the deceased’s next of kin, there are no legal avenues through which they can challenge their stepfather’s authority over the grave or his decision not to allow them to erect a headstone.^[51]

7.54 Another dispute was initially between two children of the deceased, but later involved two grandchildren of the deceased. When the man died, his daughter, who was the right of interment holder, left two of her brothers’ names off the headstone following a dispute about their father’s unpaid medical bills. One of these brothers regularly visited his father’s grave and was distraught that his name was not on the headstone. Upon the brother’s death, the brother’s son sought to have both men’s names placed on his grandfather’s headstone. Over 40 years after his grandfather’s death, the grandson convinced his cousin, who was now the right of interment holder, to allow him to put all of their grandfather’s children’s names on their grandfather’s headstone.^[52]

7.55 The grandson, who had often accompanied his father when he visited the grave, told the Commission that seeing his father’s name on his grandfather’s headstone allowed him to let go of the pain he had been carrying.^[53]

7.56 Another dispute of this kind concerned a number of unmarked graves of Jewish Holocaust survivors. Having fled World War II, many of these people were poor and had few, if any, relatives in Victoria. Headstones were not erected over their graves, even though it is important in the Jewish faith to memorialise the deceased.^[54]

7.57 The Commission was told that several individuals and organisations, from Australia and overseas, have sought to install headstones on these graves to rectify what they perceive to be a great wrong. However, although they have been able to identify the graves in which the survivors are buried, identifying the right of interment holders to obtain their consent to erect the headstones after such a significant passage of time has not been possible.^[55]

7.58 Burial practices, including memorialisation, play an important role in society. Among the reasons they exist are so that the bereaved may honour the deceased, observe religious or cultural customs, and commence the process of moving forward after death.

7.59 In cases of the kind described above, there is no way for the bereaved to memorialise the deceased without the right of interment holder’s consent.^[56] The community might consider these circumstances unjust. Accordingly, the Commission invites the government to consider whether the near-absolute and perpetual authority of the right of interment holder under the Act and Regulations remains necessary and appropriate.

1. In this chapter, the term burial is used instead of interment, however, interment is not limited to burial in a grave. It also includes the placing of a body or remains in a vault, mausoleum, niche wall or any other structure or plot: Cemeteries and Crematoria Act 2003 (Vic) s 3 (Definition of ‘interment’ and ‘place of interment’).

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2. Cemeteries and Crematoria Act 2003 (Vic) ss 114, 129, 136. Burial at sea is an example of the disposal of a body other than by burial or cremation in a public cemetery.

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3. Submissions 24 (Geelong Cemeteries Trust), 25 (Department of Health and Human Services, Cemeteries and Crematoria Regulation Unit), 26 (The Greater Metropolitan Cemeteries Trust), 27 (Cemeteries and Crematoria Association of Victoria), 35 (Victorian Bar), 36 (Law Institute of Victoria), Consultations 2 (Carolynne Bourne), 20 (Department of Health and Human Services, Cemeteries and Crematoria Regulation Unit), 26 (Jewish Community Council of Victoria), 28 (Marie Brittan). While the Cemeteries and Crematoria Regulation Unit’s submission is confidential, the Commission has obtained the Unit’s permission to include some information contained in its submission in this report.

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4. Cemeteries and Crematoria Act 2003 (Vic) s 73; Consultation 20 (Department of Health and Human Services, Cemeteries and Crematoria Regulation Unit). In Smith v Tamworth City Council (1997) 41 NSWLR 680, Justice Young observed that ‘often the RSL will in fact be the entity that pays for the funeral. Indeed, it is not at all uncommon in practice for a cheque payable to the deceased received by the person named as executor will be cleared by special arrangement with the deceased’s bank and the proceeds used to pay the funeral account. The mere fact that a person is the source of the moneys which pay the funeral account cannot constitute that person as “the person who paid for” the grave site.’ In that case, Justice Young determined, ‘The person who actually was billed by the Council and who actually paid the account to the Council was, of course, the funeral director. I would conclude that the funeral director paid on behalf of the person who had been granted the licence on 11 March when the body was interred’: at 696.

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5. Cemeteries and Crematoria Act 2003 (Vic) s 77(1)(a)–(b).

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6. Cemeteries and Crematoria Act 2003 (Vic) s 77(3)–(4). See s 77 generally for the entitlements of the right of interment holder.

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7. Cemeteries and Crematoria Regulations 2015 (Vic) r 30(2)–(3) Schedule 1, Form 3.

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8. Cemeteries and Crematoria Regulation Unit, Department of Health and Human Services, Government of Victoria, Right of Interment Fact Sheet (2003) <https://www2.health.vic.gov.au/about/publications/factsheets>. This chapter addresses the right of interment over a plot. However, a person can obtain a right of interment over any place of interment, which includes a vault, niche wall, etc: Cemeteries and Crematoria Act 2003 s 3 (Definition ‘place of interment’).

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9. Cemeteries and Crematoria Act 2003 (Vic) s 77(1)(a)–(b). Memorialisation at the place of interment may include a monument, tombstone, headstone, ledger, cenotaph, plaque or other method of memorialisation subject to cemetery trust rules and other regulations: Cemeteries and Crematoria Act 2003 (Vic) s 3 (Definition of ‘memorial’).

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10. Cemeteries and Crematoria Act 2003 (Vic) ss 77(1)(c)–(d), 88(2)(ab). You may also lift and reposition a whole body.

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11. A person seeking to exhume a body must apply to the Secretary for an exhumation license. The right of interment holder must complete Part E of the application where they may endorse or object to the exhumation: Cemeteries and Crematoria Regulations 2015 (Vic) Schedule 1, Form 5, Part E. An exhumation license may be granted subject to such terms and conditions that the Secretary thinks fit: Cemeteries and Crematoria Act 2003 (Vic) s 157(2).

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12. Cemeteries and Crematoria Act 2003 (Vic) s 77; Cemeteries and Crematoria Regulation Unit, Department of Health and Human Services, Government of Victoria, Right of Interment Fact Sheet (2003) <https://www2.health.vic.gov.au/about/publications/factsheets>.

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13. Cemeteries and Crematoria Act 2003 (Vic) ss 73–77.

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14. See [7.4].

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15. Rutherford v Wallace [1999] NSWCA 299; Cemeteries and Crematoria Regulation Unit, Department of Health and Human Services, Government of Victoria, Right of Interment Fact Sheet (2003) <https://www2.health.vic.gov.au/about/publications/factsheets>.

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16. Where a person dies without a will, or their will fails to effectively dispose of all of their property, the rules of intestacy set out the order of priority for who is entitled to inherit the deceased’s estate and in what proportion. In Victoria, the rules are governed by the Administration and Probate Act 1958 (Vic).

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17. Consultation 20 (Department of Health and Human Services, Cemeteries and Crematoria Regulation Unit).

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18. Ibid.

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19. Ibid.

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20. Cemeteries and Crematoria Regulations 2015 (Vic), Schedule 1, Form 1.

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21. Commonly, the applicant is a relative or friend of the deceased, or a funeral director.

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22. Cemeteries and Crematoria Act 2003 (Vic) s 116(5); Cemeteries and Crematoria Regulations 2015 (Vic) Schedule 1, Form 1.

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23. Cemeteries and Crematoria Act 2003 (Vic) ss 116,118.

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24. Ibid s 119 and Cemeteries and Crematoria Regulations 2015 (Vic) r 24.

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25. Cemeteries and Crematoria Act 2003 (Vic).

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26. Ibid s 74(1).

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27. Ibid s 128.

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28. Ashes may be placed in a grave, vault, mausoleum, niche wall or any other structure or plot used for the interment of human remains: Cemeteries and Crematoria Act 2003 (Vic) s 3 (Definition of ‘interment’ and ‘place of interment’).

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29. Cemeteries and Crematoria Act 2003 (Vic) ss 74(2), 128(b). The holder of a right of interment that expires after 25 years may seek an extension of the right of interment for another 25 years or seek to convert the right to a perpetual right: Cemeteries and Crematoria Act 2003 (Vic) s 85 (2).

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30. Cemeteries and Crematoria Act 2003 (Vic) s 98(2)(c).

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31. Consultation 2 (Carolynne Bourne). See also Case study 11 in Chapter 3.

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32. Ibid.

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33. Consultations 6 (A community member), 12 (Aldo Taranto).

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34. Submission 25 (Department of Health and Human Services, Cemeteries and Crematoria Regulation Unit).

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35. Consultations 2 (A community member), 6 (A community member).

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36. Consultation 2 (Carolynne Bourne). See also Case study 11 in Chapter 3.

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37. Consultation 6 (A community member).

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38. At common law, they may also have the right to erect the headstone, subject to the rights of another right of interment holder.

    See [6.28]–[6.32].

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39. Cemeteries and Crematoria Act 2003 (Vic) ss 77(1)(a)–(b).

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40. See [7.9]; above n 11.

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41. Cemeteries and Crematoria Act 2003 (Vic) s 2A.

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42. Pursuant to the Cemeteries and Crematoria Act 2003 (Vic) s 180, the Governor in Council may make regulations with respect to a number of circumstances, including forms for the purposes of the Act and any other matter that is necessary to give effect to the Act.

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43. Cemeteries and Crematoria Act 2003 (Vic) ss 130, 131.

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44. Cemeteries and Crematoria Act 2003 (Vic) s 133.

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45. Cemeteries and Crematoria Regulations 2015 (Vic) r 31.

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46. The nearest surviving relative of the deceased is defined as the spouse or domestic partner of the deceased, then a son or daughter, or stepson or stepdaughter, who has attained the age of 18 years; then a father or mother; then a brother or sister who has attained the age of 18 years; then a grandfather or grandmother; then a grandson or granddaughter who has attained the age of 18 years; then an uncle or aunt who has attained the age of 18 years; then a nephew or niece who has attained the age of 18 years: Cemeteries and Crematoria Regulations 2015 (Vic) r 5. See also r 31.

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47. Cemeteries and Crematoria Regulations 2015 (Vic) rr 31(2)–(4).

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48. Consultation 28 (Marie Brittan).

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49. Consultation 8 (Council on the Ageing).

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50. See the Cemeteries and Crematoria Act 2003 (Vic) ss 128–141, which sets out the law on cremation. Pursuant to the Cemeteries and Crematoria Act 2003 (Vic) s 180, the Governor in Council may make regulations with respect to a number of circumstances, including forms for the purposes of the Act, the cremation of human remains and any other matter that is necessary to give effect to the Act.

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51. Consultation 20 (Department of Health and Human Services, Cemeteries and Crematoria Regulation Unit).

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52. Consultation 12 (Aldo Taranto).

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53. Ibid.

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54. Consultation 26 (Jewish Community Council of Victoria).

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55. Ibid.

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56. Cemeteries and Crematoria Act 2003 (Vic) s 98(2)(c); Consultation 20 (Department of Health and Human Services, Cemeteries and Crematoria Regulation Unit).

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