Feuding over the funeral – who has the say?

Posted on January 8th, 2018

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They say death brings out the worst in people. It follows that the funeral arrangements are probably the first opportunity where disputes can erupt.

So who has the final say when it comes to your funeral arrangements?

If you die with a will, the answer is your executor. The executor appointed under your will has the right to the custody and possession of your body for the purpose of burial and is responsible for the burial. These rules date back to 1882. If you have included wishes regarding your funeral in your will, they are not binding on your executor. If however you have left a written direction that you are not to be cremated, this is binding on your executor. 

If you die without a will, your next of kin has the right to arrange your burial. In terms of disputes arising, it is important to note that a de facto has a higher right to burial than a child and in some circumstances this may lead to disputes over whether someone is a de facto spouse. Furthermore, biological parents have a higher right to burial of a child than foster parents or carers.

The law even contemplates what is to happen if you have no next of kin and do not leave a will. In that case, the person in whose house you have died is the person responsible for your burial.

Where disputes arise in relation to funerals, it is often difficult to manage the emotions and wishes of everyone involved. This can be worsened in situations where there are numerous beneficiaries of an estate who feel that they should have a say in what happens because they see it as them effectively paying for some of the funeral (as funeral expenses are paid out of the estate).

You should carefully consider what the likely arrangements will be for your funeral upon your death and whether it is likely there will be disputes. It is important that this is considered when choosing who to appoint as your executor under your will.

Lana Black, Solicitor at Mullane & Lindsay Solicitors, NewcastleLana Black is a Director at Mullane & Lindsay Solicitors and practices extensively in estate planning and administration. If you require any assistance in this area please contact Lana Black to arrange a consultation or contact our Newcastle office.

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