Who has the legal right to make your funeral decisions?

If you’ve put in place a pre-paid funeral you might think that that’s a silly question. But even if you have, that doesn’t mean there aren’t still decisions to be made after your death. Burial or cremation? Religious or non-religious service? Who gets the final say?

Recent case

The recent NSW case of Gus Kak v Allison Sarah Kak (nee Boman)[1] confirmed that the executor of your Will has to right to make your funeral arrangements, if they are ready, willing and able to do so.  

The case concerned a contest between the deceased’s widow Allison and brother as to whether his burial rights would be conducted in accordance with either the Catholic or the Muslim faiths. Born into the Muslim faith, the deceased later adopted Catholicism; on the evidence, he maintained a connection with both faiths throughout his adult life. He married in a Catholic Church, where his widow wished his funeral to be held; this was strongly opposed by his brother, who sought that he be buried in accordance with Muslim tradition. 

The decisive consideration in this battle of faiths was that the deceased’s Will appointed his wife as sole executor. In deciding in favour of Allison, the Court confirmed the executor has the right to dispose of the body, and decide where and how it is to be buried or cremated. Had the deceased not appointed Allison as his executor, the decision would doubtless have been very different.

But what if you die without a will?

The ‘likely administrator’ rule provides that the person most likely to be awarded the right to administer an estate on intestacy has the right to determine the deceased’s funeral arrangements and dispose of the body. In Victoria, the order of priority to determine the most likely administrator is spouse or partner, followed by children (or their guardian, if the children are under 18), then parents, or failing that then extended family members. 

In the absence of either executor or family members, the decision about how to dispose of the body will rest with the householder of the premises in which the deceased passed away.

If there are two people with equal rights to deal with the body, the question becomes one of practicality and avoiding unnecessary delay. 

The wishes of the deceased may also be relevant, as in the Victorian case of Keller v Keller.[2] 

Although the late Mrs Keller had appointed an executor, a bitter dispute between her two children as to whether she should be buried or cremated meant the independent executor was understandably not willing to decide how to dispose of the body. 

In this scenario, the trust the deceased had placed in her daughter in life by appointing her a medical attorney, and accepting her care and support throughout the progression of her final illness, played a pivotal role in the daughter receiving the right to deal with her mother’s remains.

Cultural and spiritual values may also be taken into account, as in the case of Jones v Dodd[3] where the Court released the body to the deceased’s father in accordance with Aboriginal tradition. This was despite the existence of a de facto partner and some conflicting evidence that the deceased had converted to Christianity. Importantly, the deceased in this case did not leave a Will or appoint an executor who could arrange for the disposal of his body.

Had he done so, however, it seems fairly safe to conclude that the right to deal with the body would have fallen to the executor – as long as they were ready, willing and able to do so. 

Key Lessons

These cases emphasise the importance of appointing the right executor, namely someone who is going to give effect to your last wishes (in more ways than one).  However, if you have a preference (or know your loved ones may have differing views), it’s worth documenting your funeral wishes and ensuring your executor and family members are aware of your intentions well ahead of time. 

For more information or guidance, please do not hesitate to contact us.

[1] [2020] NSWSC 140
[2] [2007] VSC 118
[3] (1999) 73 SASE 328