As a succession lawyer, I spend most of my day discussing with people how they would like their property dealt with and distributed after their death.
It is surprising how few people ever really consider how they would like their remains to be disposed of.
The answer becomes more complex if you have not left a will.
An analysis of court decisions make it clear that where there is no will the person who controls the disposal of the body is usually determined in the order of:-
- the deceased’s spouse or de facto partner;
- a child of the deceased;
- a parent of the deceased; or
- a sibling of the deceased.
Unfortunately, unless families can reach agreement about the arrangements, the arrangements often need to be determined by an application to the Court.
If you have not made a will, but you have left signed instructions for cremation then an application for permission to cremate may be made based upon those instructions.
If you have not made a will, nor left any instructions for cremation then an application for permission to cremate may still be made but your body cannot be cremated if objection is raised by your spouse, adult child or parent.
See also: Do I need a lawyer to create a will?
So who is responsible for disposing of the deceased’s body and how will the deceased’s body be disposed of?
There is no shortage of legal authorities where courts have had to decide these questions in the context of disputes among family members.
If the deceased made a will, then the law is quite clear that the deceased’s executor is the person with the legal right and responsibility to dispose of the body. How it happens is again usually decided by the executor, but the executor may have to comply with the instructions of the deceased.
In Queensland, a person must consent to their body being cremated after death.
That consent can obviously be given through your lifetime and can be given if you have pre-arranged your funeral with a funeral director.
You can also leave signed instructions for your body to be cremated. If you have left signed instructions to be cremated, then in Queensland the law requires your executor to make an application for permission to cremate your body. This obligation overrides any discretion that an executor might have had at common law to decide on how your body might be disposed of.
Your instructions for cremation must be in writing and must be signed. If you make a will those instructions are best contained in your will. But, anything in writing and signed by you is sufficient.
What if I have created will?
If you have made a will but appointed more than one executor then in the absence of any instructions from you about the disposal of your body, there might be disagreement between your executors about what arrangements should be put in place.
Unfortunately, where agreement cannot be reached amongst executors, the arrangements would need to be determined by a court.
The death of a loved one is always a difficult time. Grieving can be made more difficult if there is an indeterminable dispute amongst family about arrangements for the disposal of your body and your funeral.
Applications to the court come at considerable expense and it is an expense which is often borne by your estate.
When considering your estate plan, whilst the distribution of your property is an important part of your estate plan, you should give careful consideration about the disposal of your body.
Take a look at our our checklist for a healthy will.
Need Assistance with Wills & Estate Law?
The Wills and Estate Team at Hede Byrne and Hall offers a wealth of experience in handling succession planning, with caring and supportive lawyers operating across our Toowoomba, Warwick and Roma offices.