Can you enforce burial or cremation? A summary by state

After an aside with @Terry_w in another thread, we were talking about whether wishes to be buried or cremated were enforceable in Australia. This prompted me to go and research the topic - which took me disproportionately longer than anybody's appreciation for having the info, no doubt - but I was interested, so here is a summary of the current state of play in Australia, by state:

The answer below is simplified - other variations between states include:

• what form the written wishes must be expressed in;
• different rules in some states for stillborn infants, fetuses, 'pauper's funerals', and bodies that have had autopsies or present public health risks;
• who qualifies as a person with a right to object.

But the summary below applies to significantly post-birth humans whose funeral is paid for by their estate (or NOK), and don't die of some terribly infectious disease and whose bodies aren't part of, say, a murder investigation.

Burial and cremation are the only two legal methods of disposing a body in every jurisdiction, but it's possible that if you wished to have your body disposed of by another method (eg sky burial, burial at sea, etc) you could apply to the relevant court for permission. (Whether it will be granted or not, I don't know - I couldn't find any examples.)

Queensland[1] [2]

• If you leave written instructions that you wish to be cremated, cremation is the only legal option.
• If you leave written instructions that you wish to be buried, these are not binding on your legal personal representative (LPR, who organises your funeral). But if the LPR elects to cremate and a person with standing (defined close relatives) validly objects, then the body must be buried.
• If you leave no written instructions, the LPR can choose either method, but if the LPR elects to cremate and a person with standing validly objects, then the body must be buried.

New South Wales[3]

• If you leave instructions specifying that you wish to be cremated, cremation is the only legal option.
• If you leave written instructions specifying that you wish to be buried (technically, not to be cremated), burial is the only legal option.
• If you leave no written instructions, the LPR may choose either method.

Australian Capital Territory[4]

• If you leave instructions specifying that you wish to be cremated, this is treated merely as a wish and the LPR may elect to cremate or bury.
• If you leave written instructions specifying that you wish to be buried (technically, not to be cremated), then burial is the only legal option.
• If you leave no written instructions, the LPR may choose either method.

Victoria and Tasmania

• If you leave written instructions specifying that you wish to be cremated, this is treated merely as a wish and the LPR may elect to cremate or bury.
• If you leave written instructions specifying that you wish to be buried, this is treated merely as a wish and the LPR may elect to cremate or bury.
• If you leave no written instructions, the LPR may choose either method.

South Australia[5]

• If you leave written instructions specifying that you wish to be cremated, the LPR may elect to cremate or bury. If, however, they choose to cremate and a person with standing objects, the written wishes are justification for the LPR proceeding with cremation.
• If you leave written instructions that you wish to be buried, these are not binding on your LPR, but if the LPR elects to cremate and a person with standing (defined close relatives) validly objects, then the body must be buried.
• If you leave no written instructions, the LPR can choose either method, but if the LPR elects to cremate and a person with standing validly objects, then the body must be buried.

Western Australia[6] [7]

• If you leave written instructions specifying that you wish to be cremated, the LPR must use ‘all reasonable endeavours’ to cremate, but if cremation is not reasonably achievable for some reason, then burial is permitted.
• If you leave written instructions specifying that you wish to be buried (technically, not cremated), then burial is the only legal option.
• If you leave no written instructions, the LPR can choose either method, but if the LPR elects to cremate and a person with standing validly objects, then the body must be buried.

Northern Territory[8]

• If you leave written instructions specifying that you wish to be cremated, the LPR may elect to cremate or bury. If, however, they choose to cremate and a person with standing objects, the written wishes are justification for the LPR proceeding with cremation.
• If you leave written instructions specifying that you wish to be buried, this is treated merely as a wish and the LPR may elect to cremate or bury.
• If you leave no written instructions, the LPR can choose either method, but if the LPR elects to cremate and a person with standing validly objects, then the body must be buried.

Footnotes

[1] CREMATIONS ACT 2003 - SECT 7 Deceased person’s wish to be cremated

[2] CREMATIONS ACT 2003 - SECT 8 Objections to cremation

[3] PUBLIC HEALTH REGULATION 2012 - REG 77 No cremation against dead person's wishes

[4] CEMETERIES AND CREMATORIA REGULATION 2003 - REG 8 Requirements for cremation of human remains-Act, s 20

[5] BURIAL AND CREMATION ACT 2013 - SECT 9

[6] CREMATION ACT 1929 - SECT 8A

[7] CREMATION ACT 1929 - SECT 13

[8] CEMETERIES ACT 1952 - SECT 18 Next of kin may object to cremation

 

Nice Summary Perp.

 

Good summary. However given that the party normally dies and it takes some time to determine administration of an estate after probate and to locate and determine what Will was the LAST Will & Testament and just who may or may not be the LPR then its pretty hard for a executor to be liable for failing to follow directions. And dead people tend not to sue. In most instances "family" will decide these matters during the day or two following death. And unless those decisions are affected by a person who considers them selves sufficiently aggrieved by those choices its hard to see what "damages" could arise.

I gather too that cremation is the cat of burning to ash. The disposal of the ash is not a legal concern then ?

How may a donation of remains for medicine or research be complied with ?

Organ donation ? I guess that comes before the burial / cremation issue.

 

Sometimes there can be disputes over the control of the dead body - the spouse v the parents v the children sort of thing. In these cases the LPR can be sued if it turns out they did something without having the power to do. Also funeral parlours don't deal with the LPR, they deal with the next of kin - usually the spouse if there is one.

 

donate body to science or body farm for me...hopefully these laws apply ...best to speak with the lawyers I guess.

 

Absolutely true - the laws are less about having a means to punish the survivors but about what power the deceased can take to give their wishes the 'best chances' of being followed, proactively. If you make written instructions directing a certain method, in a state where that's binding, and tell your NOK that those instructions exist, then you've best ensured your wishes will be followed. Before a certificate will be issued permitting cremation, for example, the issuer will ask whether the deceased left any written instructions.

The executor has the right to cremated ashes and decide how they will be disposed of. Once the executor 'gives' them to somebody, they become that person's property with usual legal rights to property. Once scattered or interred, ashes are no longer property and there are no property rights.

Anything said in the will about who gets ashes is only a wish and not binding on the executor, anywhere in Australia. The executor has absolute discretion. It can be challenged in the Supreme Court based on the power of that court over executors, but while a number of cases have been initiated, the courts have thus far declined to make rulings, ie have always left it to the discretion of the executor. See eg Disputes over the division of your remains: where do courts draw the line in the ashes? - McCabe Curwood

Yes, both these issues precede burial/cremation, and aren't considered methods of 'disposal' of the body. Anything in the will is just an expression of wishes; arranging for these is at the discretion of the executor (and usually also the NOK, if not the same).

If there's been an organ donation, you usually get the body back and process is as per usual.

If body is donated to science, the university uses it for around 3 years, and then the remains are usually disposed of at the benefiting institution's cost, most of which offer a choice of cremation or burial, but it's usually a very simple service. Most families will have a memorial service - without the body - immediately after the death, and perhaps a couple of closest relatives will attend the cremation or burial a few years later. But sometimes no memorial service is held and the cost saved on a funeral is one of the motivations for donating the body to science.

Thanks for the great questions, @Paul@PFI!

 

Thanks for that reference to the regs, very handy. Yes, my point was that burial and cremation are the only methods for which you don't need special permission. But this explains why I didn't see any applications for burial at sea - they've already allowed for a process.

 

Thanks for the informative response. I have a plan to screw them all up. I will haunt them forever

 

If you live in one state and die in another, i assume the home state's rules override?

 

Another good question!

But no, the laws of the state in which your body is being buried or cremated apply.

 

I was on a Celebrity Cruise and the question was asked about disposal of ashes at sea. While it may be permitted by national laws it is prohibited by an international maritime charter for all cruise ships. They have all agreed to a zero emissions overboard policy and the Captain cannot approve a request. On Celebrity if they are asked the ashes are confiscated until the final day and handed back. Someone laughed and suggested down the toilet and this wont work either since all sewer waste is burned would merely recycle the ash to...ash

 

Yes, of course you need a willing carrier to take the body/ashes out to sea.

Disposal of ashes is legal, though, without permission, though some nations have requirements for distance from shore / depth. (Australia doesn't - you can dump ashes in any ocean, from the shore, without a permit.) That doesn't mean, of course, that there aren't other reasons - such as the one you cited - why a particular method can't be used.

Burial at sea usually refers to actual bodies, though, rather than ashes. I believe you pretty much have to privately charter a plane or boat. But to be buried at sea, you have to establish a strong connection with the sea, anyway, so many who opt for this are former fishermen - who know people with trawlers who will take their remains out - or ex-Navy personnel, who - certainly when I was in - the RAAF and/or Navy will often agree to transport.

In fact, I remember years ago when I was in the RAAF, they were disposing of an ex-RAAFie's ashes over the ocean from a Caribou. They'd rigged up a contraption, with the ashes essentially in a box on a long line, where they could open the box from inside the aircraft. So the plan was to open the rear ramp in the air, let out the ashes on the line, then when it was far enough away, release the lid, dispersing the ashes.



Unfortunately, they miscalculated how long the line needed to be to get clear of the turbulence wake of the aircraft, and the ashes ended up blowing back inside the plane, coating the bereaved family with the deceased's ashes. Oops.