Scenario:
Dick is his brother Peter’s executor. Peter tragically died early from prostrate cancer. He is survived by his three adult children. Peter lived in Orange. Dick had previously lived in Orange but had moved to a retirement village on the south coast of New South Wales. Peter’s children have not always “seen eye to eye”. Margaret wishes for her father to be buried. Gerald wishes for his father to be cremated. Angus will agree to whatever the other two won’t agree to.
Guidance
As the person named in the Will as the Executor who is ready, willing and able to arrange for the burial/cremation of Peter’s body he has the right to do so.
Apart from appointing an Executor who will have the right to arrange for the burial/cremation of the will makers body, and apart from any statute dealing with the disposal of parts of a body, a person has no right to dictate what will happen to his or her own body. Despite this it is not unusual for will makers to indicate their preference to be buried or cremated or even to state where they would like to be buried.
The Executor as the person who has the privilege of choosing burial or cremation is expected to consult with other stakeholders but is not legally bound to do so.
In the case where there is no executor named, the person with the highest right to do so will have the same privilege as the executor outlined above. The right of a surviving spouse will be preferred to the right of the children.
In Peter’s case where he does not have a surviving spouse, should he not have named an executor, the children would be of equally ranking privilege. In such a situation the practicalities of burial/cremation without unreasonable delay will decide the issue.
Were Peter to have died in a situation where there is no competent person willing to bury the body, the householder where the death occurs has responsibility for burying the body.
A person who pays for the burying/cremation of the deceased’s body has a “restitutionary” action to recover his or her reasonable costs and expenses.
The person who is the “holder” of the right of burial cannot use that right in such a way as to exclude friends and relatives of the deceased from expressing their affection for the deceased appropriately and reasonably such as by placing flowers on the grave.
Information: Blackwell Short Lawyers (Elder lawyers).