Executor's power / Funeral and burial method

Yukio Hayashi    24 Apr 2019

Q: Recently my father passed away. My father's old friend is acting as an executor based on the will. Yesterday I had a quarrel in relation to what to do with my father's grave. I told him that my father mentioned a cremation, but he insisted that it would be best to bury him near the divorced mother's graveyard. The will is silent about funeral and burial methods. In this case, do I have any legal right?

A: In general, the will of the deceased specifies the deceased's funeral and burial methods or requires the bereaved family to determine such methods. However, in rare cases, there are some situations in which the bereaved families fail to reach an agreement.

If a will exists, the executor, in principle, has the right to decide on funeral and burial. It may seem surprising that the method of burial cannot be determined by words of the deceased, even if the deceased had written instructions in the will.

The NSW Supreme Court set out the principles of funeral and burial in the case of Smith v Tamworth City Council held in 1997. Some of the key principles are summarized below.

If the executor is designated in the will, the executor has the authority to manage the deceased's funeral and burial. The executor has no legal obligation to follow the instructions given in the will regarding the funeral and burial of the deceased.

In the absence of a will, a person in the highest inheritance rank in accordance with the will has the same authority as the executor.

If two or more persons have the same authority, the decision will be made in consideration of who can carry out the burial without delay.

Anyone who has the authority to manage the burial is expected to consult with other stakeholders (e.g. surviving families and relatives) but has no legal obligation to do so.

Even if it is not legally binding, it is necessary to convey your wishes to others around you, and to clearly write them in your will as well.

Key Contacts

Yukio Hayashi

Yukio Hayashi

Senior Partner