Explainer: the law on funeral and burial wishes in Victoria
Many people think that if they write down their funeral and burial wishes — for example in a will or funeral plan — those wishes are legally binding. They are not.
Under Victorian law, the executor of your will or, if you don’t leave a will the person who administers your estate, can make decisions about your funeral and burial arrangements. In other words, the executor does not need to take into account your wishes or those of your family and friends.
This can cause disputes among family and friends over the type of funeral you have and how you are buried.
If you have strong desires about your funeral or burial arrangements there are some things you can do to help make sure your wishes are carried out.
What you can do
The executor is the person who has the final say on your funeral and how you are buried. So you should appoint someone who you think will carry out your wishes. And make sure you clearly tell the person what they are. It's important to remember that whoever you choose as your executor will also be responsible for administering your estate.
To help avoid family disputes explain your wishes to your family and friends. While your wishes aren't legally binding, they are more likely to be carried out if you've had the conversation with those closest to you.
Inquiry into funeral and burial laws
Last year, the Victorian Law Reform Commission was contacted by a woman whose deceased relative’s wishes about the scattering of her ashes had not been carried out by the executors of her will. The woman told the Commission that the dispute about her relative’s ashes had a devastating impact on her family. The Commission began an inquiry into this area of law.
The focus of the Commission’s inquiry is whether Victorians should be allowed to leave instructions that are binding on the person with the right to control their funeral and burial arrangements. The Commission asked for submissions from the community and recently presented its findings and recommendations to the State Government. The Commission's recommendations will be made public by the end of 2016.
For more information about the Commission’s inquiry visit the Victorian Law Reform Commission website.
You can also listen to an excellent ABC Radio National discussion about the issue.
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