Quite often people confide to their loved ones their wishes regarding what happens to their body when they pass away. It is also common for people to leave these instructions in their Will. But what happens when no such instructions are left by a loved one?

While it is a grim topic to contemplate, conflict may arise between family members as to the appropriate way to honour the remains of their loved one. As a result, it is important to make an informed decision, when this time comes.          

What does the law say?

Australian Courts have held that a person’s wishes with respect to the disposal of their body are not legally binding. As a result, the executor appointed by the Will of a deceased ultimately has the right to determine the method in which the Will maker's body is to be dealt with.

There is currently no legislation in Victoria which recognises a person’s wish to be cremated. Any reference to cremation in a person’s Will is, therefore, not legally binding on the executor. It is, however, a clear indication of the wishes of the deceased to guide the executor in their role.

What happens when no Will is left?

In the event that the deceased did not leave a Will, this right is given to the administrator appointed by the Supreme Court. However, it is uncommon for an administrator to be appointed before the burial or cremation of the deceased. The Court will assign this decision to the person most likely to be appointed as administrator. The order of priority will usually be as follows: spouse, children, children’s guardian (when children are under 18 years), adoptive parents, biological parents, extended family and household member.

Who has the right to retain the ashes?

The executor or administrator has the final say regarding what happens to the remains of the deceased. Importantly, human remains are not considered property, and cannot form part of an estate to be distributed pursuant to the Will.

In any event, an executor or administrator should be guided by the following factors when determining how the loved one’s remains should be honoured:

  1. Instructions left by the deceased;
  2. The wishes of the deceased;
  3. The wishes of the family and relatives of the deceased;
  4. Decency and respect towards the deceased and their family;
  5. Community and cultural values; and
  6. What is reasonable and practicable.

Avoiding conflict

To avoid conflict, it is important to have the difficult conversation with loved ones regarding what you want to happen to your remains. Ensure that your wishes are clearly recorded, and that you have appointed an executor who you trust to carry out these wishes (https://www.tonkinlaw.com/resources/who-should-i-appoint-to-be-my-executor).

Please contact Charlie Robinson of our office (03 9435 9044) if you have any questions concerning this.

 This is general information only. Please contact us for expert legal advice that takes your unique personal situation into account prior to making any decisions based on this article.