Who gets to bury the body?

Who gets to bury the body?

Rights and obligations about funeral arrangements and disposal of bodies is an area of law which is not even thought of until we hear media coverage of disputes about the funeral arrangements for celebrities like Michael Jackson and Anna Nicole Smith.

In 2008, there were 143,900 deaths registered in Australia with 27,335 in Queensland. Because of complex family arrangements such as blended-families and de facto families, and cultural, religious and social differences, it is inevitable that there will be disputes about funeral arrangements. At the heart of those disputes is the question –  who has the right to organise the funeral and who pays for this.

In 2015, the Supreme Court of Queensland made a decision in relation to funeral arrangements where the body of the deceased had lain in a mortuary for thirteen years after a dispute about the manner of death and appropriate arrangements. Here are some general propositions:

  • If a person has named an executor in a Will, and the executor is ready, willingly and able to arrange for the funeral,the executor has the right to do so.
  • Although a person can specify an executor in their Will, a person, during their lifetime, has no right to dictate what will happen to their body after their death.
  • A person with the privilege of choosing how to bury a body is expected to consult with other stakeholders, but is not legally bound to do so.
  • If there is no Will or no executor is named in the Will, then the person who has the highest right to apply to the Court for the right to administer the Will has the same “rights” as the executor in relation to the arrangements for the disposal of the body of the deceased.
  • The right of the surviving spouse or de facto spouse will be preferred to the right of children.
  • Where two or more persons have an equally ranking privilege/right, the practicalities of burial without unreasonable delay will decide the issue.
  • If a person dies in a situation where there is no competent person willing to bury the body, the householder where the death occurs has the responsibility for burying the body.
  • A person who spends their own money in burying a body has the right to take action to recover his or her reasonable costs and expenses from the estate. This includes the cost of headstones.
  • The holder of the right of burial cannot use the right in such a way as to exclude friends and relatives of the deceased expressing their affection for the deceased in a reasonable and appropriate manner such as by placing flowers on the grave.
  • After the death of the executor or administrator, the right to control the grave passes to the legal personal representative of the original deceased, not the legal personal representative of the holder of the right of burial.

The “right” thing to do is to make your reasonable wishes known before you die to avoid any disputes during what is a highly emotional time.


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