Funeral and Burial Instructions: Report (html)
Recommendations
1 Victoria should introduce an Act that:
(a) allows people to leave binding funeral and burial instructions and/or appoint a funeral and burial agent and
(b) where no binding funeral and burial instructions have been left, allows the person with the right to control the funeral and burial arrangements of the deceased to make any arrangements, provided they are not:
(i) unlawful or
(ii) inconsistent with the known beliefs and/or values of the deceased at the time of their death.
2 The person with the right to control the funeral and burial arrangements of the deceased should be determined in accordance with the following order of priority:
(a) a funeral and burial agent appointed by the deceased
(b) the executor of the deceased’s will
(c) the deceased’s senior adult next of kin who is willing and able
(d) a person close to the deceased immediately before their death
(e) any other person who is willing and able to arrange the funeral and burial of the deceased, provided it is appropriate for them to do so.
3 The Coroners Act 2008 (Vic) should be amended so that a deceased’s funeral and burial agent has the highest claim to receive the body in the event that two or more people apply to the coroner for the release of the body.
4 Funeral and burial instructions should be defined as directions that a person clearly intends to have carried out after their death and that relate to:
(a) rituals associated with the disposal of their body and/or remains
(b) the disposal of their body
(c) the disposal of their remains and/or
(d) memorialisation at the site of their body or remains.
5 The person with the right to control the funeral and burial arrangements of the deceased should:
(a) be responsible for making decisions that relate to:
(i) rituals associated with the disposal of the body and/or remains
(ii) the disposal of the body
(iii) the disposal of remains and
(iv) memorialisation at the site of the body or remains, and
(b) have the right to possess the body and remains for those purposes.
6 The person with the right to control the funeral and burial arrangements of the deceased should forfeit that right if they:
(a) lack legal or physical capacity
(b) are unwilling to act
(c) fail to carry out the funeral and burial within a reasonable period of time
(d) act in a manner that is contrary to the proposed legislative regime or
(e) act in any other manner, before or after the death of the deceased, which the court considers makes it inappropriate for them to retain the right.
7 Only a natural person over the age of 18 years should be eligible for appointment to the role of funeral and burial agent.
8 A funeral and burial agent should be prohibited from receiving a financial reward for acting as the agent.
9 The deceased’s estate should be liable for the reasonable costs, as determined by reference to the size of the estate and other relevant circumstances, of:
(a) carrying out rituals associated with the disposal of the body and/or remains
(b) disposing of the body
(c) disposing of the remains and
(d) memorialising the deceased at the site of the body or remains.
10 A funeral and burial agent appointment form should be prescribed in legislation. The form should contain a guidance note that, at a minimum, explains:
(a) the activities that fall within a funeral and burial agent’s control, and the limitations of the agent’s control with respect to burial in, and memorialisation at, a place of interment the agent does not also have control over
(b) the responsibilities of a funeral and burial agent where a person has left funeral and burial instructions and where they have not and
(c) the liability of the deceased’s estate with respect to the costs of carrying out funeral and burial instructions, including that the estate is not liable for the costs of carrying out extravagant instructions.
11 The appointment of a funeral and burial agent should only be valid if:
(a) the person nominating the agent signs and dates the prescribed form in the presence of at least one adult witness and
(b) prior to the death of the nominator, the nominated agent signs and dates the prescribed form in the presence of at least one adult witness.
12 A funeral and burial agent should only be able to resign in writing, before the death of the person who appointed them.
13 A person who has appointed a funeral and burial agent should only be able to revoke the appointment:
(a) in writing if signed and dated in the presence of at least one adult witness
(b) by the later appointment of another funeral and burial agent or
(c) in any other manner that satisfies the court that they clearly demonstrated an intention to revoke the appointment.
14 A person’s funeral and burial instructions should only be binding if they are recorded:
(a) in writing and signed and dated in the presence of at least one adult witness or
(b) in an electronic form that reliably identifies the person leaving the instructions and the date on which the instructions were left.
15 The Wills Act 1997 (Vic) should be amended so that a person who has the possession and control of a will, a revoked will or a purported will of a deceased person, must allow the deceased’s funeral and burial agent to inspect and make copies of the will.
16 A person who has left funeral and burial instructions should only be able to revoke the instructions:
(a) in writing if signed and dated in the presence of at least one adult witness
(b) in an electronic form that reliably identifies the person revoking the instructions and the date on which the instructions were revoked
(c) by leaving later inconsistent instructions or
(d) in any other manner that satisfies the court that they clearly demonstrated an intention to revoke the instructions.
17 The person with the right to control the deceased’s funeral and burial arrangements should be required to comply with the funeral and burial instructions of the deceased unless:
(a) complying with the instructions would be unlawful or impracticable
(b) there is a reasonable possibility that the right holder will not be able to recover the costs of carrying out the instructions from the estate or
(c) the court considers there is some other compelling reason for the right holder not to comply with them.
18 If the person with the right to control the deceased’s funeral and burial arrangements is exempt from complying with the deceased’s funeral and burial instructions on one of the above grounds, they should be required to ensure that the funeral and burial arrangements are not:
(a) unlawful or
(b) inconsistent with the known beliefs and/or values of the deceased at the time of their death.
19 A child (a person under the age of 18 years) should be allowed to leave binding funeral and burial instructions and/or appoint an agent with the consent of:
(a) the child’s parent(s) or guardian(s) or
(b) the court, where the court is satisfied that:
(i) the child understands the nature and effect of the instructions and/or appointment
(ii) it is reasonable in the circumstances to permit the child to leave the instructions and/or appoint the agent and
(iii) in the case of instructions, the instructions accurately reflect the intentions of the child.
20 A child (a person under the age of 18 years) should be able to leave binding funeral and burial instructions in a will made under section 6 of the Wills Act 1997 (Vic) or authorised by the court under section 20 of the Wills Act 1997 (Vic).
21 Where no binding funeral and burial instructions have been left, the person with the right to control the deceased’s funeral and burial arrangements must seek the views of those known to be close to the deceased at the time of their death, where it is reasonable in the circumstances to do so.
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.
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.
24 The Supreme Court, County Court and Magistrates’ Court should have jurisdiction over disputes that arise under the proposed Act. Disputes arising under the Act that concern the authority of an executor and/or the deceased’s estate should only be heard in the Supreme Court or County Court.
25 The Dispute Settlement Centre of Victoria should take steps to enhance public awareness of its ability to mediate funeral and burial disputes in an affordable, timely and culturally-appropriate manner, including by conducting awareness raising campaigns among relevant service providers and Victoria’s Aboriginal, culturally and linguistically diverse and LGBTI communities.
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