Australia: Burial or cremation – Who ultimately decides?

For someone whose job it is to deal with deceased people's property every day, it never fails to surprise me how few people have actually considered how they would like their remains to be disposed of upon death.

The period immediately following someone's death is often unsettling and confusing, particularly the process of contacting the deceased's friends and relatives and making funeral arrangements. Typically, one question tends to arise during this period: "who is responsible for disposing of the deceased's body?" - with this often being accompanied by another question; "how will the deceased's remains be disposed of?"

If the deceased made a Will, the answer to the "who" question is found in the case of Smith v Tamworth City Council and Ors [1997] NSW 197. The person named as an Executor within the deceased's Will is responsible for administering the deceased's estate and holds the responsibility of deciding how to dispose of the deceased's remains.

The question of "how" is usually decided by the Executor, relying upon instructions within the deceased's Will (or perhaps elsewhere outside of the actual Will) with regard to how they would like their body to be disposed of.

Things become somewhat more complicated when someone dies without a Will and has not otherwise indicated, be it verbally or in writing, the type of funeral and burial arrangements that they would like.

This issue came to light in Dragarski v Dunn [2019] NSWSC 300, a case recently decided by Pembroke J in the Supreme Court of New South Wales. The deceased in this case, Melissa Dunn, died after a short battle with cervical cancer. She had not made a Will, and a dispute arose between her mother and her former de-facto partner Mr Dragarski as to whether her remains should be buried or cremated.

The court held that the usual order of precedence with regard to who controls the disposal of the deceased's body is as follows:

  1. The deceased's spouse or de-facto partner;
  2. A child of the deceased;
  3. A parent of the deceased; and then
  4. A sibling of the deceased.

In determining who had the right to dispose of the deceased's remains, the Supreme Court was required to make a finding on whether the deceased and Mr Dragarski had recommenced a de-facto relationship prior to her death. In making its finding, the court considered factors contained within Section 21C(3) of the Interpretation Act 1987 (NSW) in order to determine whether a de-facto relationship had existed, these being:

  1. The duration of the relationship;
  2. The nature and extent of their common residence;
  3. Whether a sexual relationship exists;
  4. The degree of financial dependence or interdependence, and any arrangements for financial support, between them;
  5. The ownership, use and acquisition of property;
  6. The degree of mutual commitment to a shared life;
  7. The care and support of children;
  8. The performance of household duties; and
  9. The reputation and public aspects of the relationship.

The Supreme Court heard that the pair's relationship began in 2003 and that they later began living together in 2010.The couple had a daughter in 2011 but later separated in August 2016 when the deceased vacated the former matrimonial home.

Mr Dragarski informed the court that he believed that the pair had recommenced a de-facto relationship in approximately March 2018, as the deceased had moved back into the former matrimonial home, and the pair had recommenced a sexual relationship.

The court had regard to the deceased's specific circumstances, including the fact that she had classified herself as "single" on her Facebook profile, and that Mr Dragarski was not one of her Facebook friends. On 9 January 2019 the deceased updated her status to read: "I am still at his [Mr Dragarski's] house, we [are] still not together though.  Kids are great".

The Supreme Court further noted that the deceased had both joined an online dating website in May 2018, and listed her mother as her emergency contact on her admission to hospital.  In addition, Ms Dunn had also been receiving a single parenting payment from Centrelink. After considering these circumstances, the court found that the pair had not recommenced a de-facto relationship.

The result of this finding was that the deceased's mother had the right to decide how her remains were to be disposed of. It must be noted that the deceased's daughter had not been old enough to legally make a decision regarding her mother's remains.

This case demonstrates the importance of careful and thoughtful estate planning, including taking the time to prepare a Will and appoint an Executor who you believe will carry out your wishes after your passing. It is important to note that a willmaker's direction within a Will, or indeed within any other document (including verbal communication) pertaining to how they wish for their body to be disposed of is not binding at law on their Executor .

With this said, it must be noted that if a person has left a written statement that they do not wish for their body to be cremated, but rather that it be disposed of by some other means, it is unlawful to then cremate their remains against their wishes.

Funerals often take place just a few days after the deceased's death, and their body is disposed of before a reading of the Will has taken place. Whilst a Will does remain a suitable place for a willmaker to record their wishes relating to how they would like their body to be disposed of, it is prudent for them to discuss with their Executor how and where they would like their remains to be disposed of.

At the very least, it is prudent for the willmaker to record their wishes in a side document kept with their personal papers - as these are likely to be accessed before funeral and burial arrangements are made in order to avoid their body being disposed of in a manner contrary to their wishes.

It is becoming increasingly popular for willmakers to direct that their organs be made available for donation upon their death. A willmaker wishing to donate their organs should register their donation decision on the Australian Organ Donor Register.

Similarly, those who wish to donate their body to a specific institution for scientific purposes should make enquires with that institution as to their eligibility to do so prior to recording such a wish in their Will.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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