One of the questions often asked in the context of estate planning in general is “Are my wishes actually going to be carried out?”

If you’ve prepared a valid Will, then yes your executor is legally bound to carry out those wishes and to administer your estate in accordance with them.

But what about wishes about burial, cremation and funeral arrangements?

If you had your Will done by us, or any other solicitor for that matter, you would have been asked about whether you wish to include a direction in your Will about burial, cremation and funeral arrangements. You don’t have to include one, but it is an option. And many choose to make an election about these, to make it clear to their executor and family members about their wishes when that time comes.

But is this direction legally binding? Must your executor follow these directions like how they do in dividing your estate assets?

Burials and Funeral Arrangements

If you did include instructions in your Will about Burials (that is, that you wish or do not wish to be buried, and where you would like to buried) and Funeral Arrangements (that you would like your favourite Celine Dion song played on loud speaker following the eulogy), the short answer is, these are NOT legally binding on your executor to follow.

This may come as a surprise.

If you have a Will, your executors (the person or persons you have appointed to manage and administer your estate) have the sole power to decide funeral and burial arrangements.

If you die without having made a Will, the administrator has that sole power. The administrator is usually the next-of-kin most closely related to you.

Either way, anything you include in your Will about wanting to be buried or not, where you want to be buried, and how your funeral is to happen – these are all mere wishes.

Cremation

We have found that increasingly people are moving away from the traditional burial to choosing to be cremated.

This is an area that has been the subject of heated debate and legislation. Unfortunately, at the moment, there is a lack of uniformity between the States and Territories on what directions in relation to cremation are legally binding.

Here we’ve summarised the different positions as they currently stand in all Australian jurisdictions:

  • In NSW and WA: if you have said “I want to be cremated” or you have said “No I don’t want to be cremated”, both directions are legally binding.
  • In the ACT: only if you have said “No I don’t want to be cremated” is legally binding.
  • In the NT, SA and QLD: if you said “I want to be cremated”, it is legally binding.
  • In Victoria and Tasmania: your executor has no legal obligation to follow your wishes for cremation, regardless if you had said “yay or nay” to cremation in your Will.

So whether or not your executor must follow your directions as a legally binding term in your Will depends on which State or Territory you reside in at the time of your death, and secondly, on whether you have nominated to either be cremated, or not to be cremated.

Practically speaking….

In the end, it all comes down to this – what steps can you take now to ensure your wishes are going to be respected?

Making clear instructions in your Will would be a very good first step. Yes, even if those wishes may not be binding.

You’ve probably gathered from this discussion that who you choose as your executor is very important. So choose wisely. You should choose someone who you trust to respect your wishes and who aligns with your beliefs and values. Ultimately, choose someone who is most likely to carry out your wishes.

Communication is key to your estate planning exercise. No plan is a good plan unless it is communicated to those who are supposed to carry out that plan to completion. So have those frank and open discussions with your loved ones so that they understand how you wish for things to occur when that times comes. It will be a difficult discussion, but why not do it now to avoid your loved ones dealing with the misunderstandings, conflict and pain on top of dealing with bereavement of having lost you. The aim of any good estate plan is to avoid uncertainty and to ensure that your wishes can be carried out.

Of course, communication won’t fix all problems, and the law certainly can’t address all human disputes, but it most certainly will promote understanding and make a smoother road for those you leave behind.

If you have questions about specific wishes about burial, cremation or funeral arrangements in thinking about your estate plan and preparing a Will, reach out to our specialist estates team on (02) 6181 2050 or drop us an email at estates@fgd.com.au.

Ying Tan is an estates lawyer in our Canberra office.

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