The majority of people give little thought to what happens after they have passed. However, it is important to be aware of what may follow during the days after your death.
If you have a valid will…
The person you appoint in your will as executor of your estate has the discretion as to how your body will be disposed of and is responsible for your funeral or cremation arrangements. Generally your executor will follow the instructions in your will, if any, but the final decision is ultimately the executor’s. This is because the law provides there is no property (ownership) in a corpse and a person cannot by will dispose of his or her own body. Thus, any directions in your will regarding disposal of your body are only declaratory and have no legal force. Your executor is expected to consult with family members regarding this, however he/she is not legally bound to do so.
If you do not have a valid will…
If you do not have a will then there will be no one appointed as your executor. This means that the person who has the highest rank to administer your estate under the law governing intestacy will be responsible. The rights of a surviving spouse or de facto will generally be preferred over the rights of any children.
What if there are disputes over the funeral arrangements?
If there are disputes regarding your funeral arrangements the Court will ultimately decide who has the right to handle the disposal of your body.
In the recent case of Spratt v Hayden, 22 year old Carlene Hayden died without leaving a will. Her father was a Wongi, with tribal lands including Kalgoorlie but her mother was a Noongar with her country being around Kellerberrin. Part of the Noongar custom is to bury members where they have close ties to family and land.
In 2006 Carlene had begun living with the plaintiff, her de facto spouse, with whom she had two children. He stated that Carlene wished to be buried in Kalgoorlie, near her paternal grandmother, however her Noongar relatives objected to burying a Noongar in another tribal group’s land.
The Court held that where there is no executor named, the person with the highest right to administer the estate will have that privilege of deciding where the burial place would be. In this case, the decision was left to her de facto spouse.
Customary or traditional values did not carry significant weight in this determination, particularly because it was also Carlene’s wish to be buried in Kalgoorlie. It is important to note, however, that this type of decision is not always made and that in other cases a special cultural interest may be sufficient to allow another to choose the burial place.
Your executor or the holder to the right of your burial, cannot use their power to exclude your friends or family members from expressing their affection as long as it is in a reasonable manner, such as putting flowers on your grave and so forth. They also do not have the power to donate your organs on your behalf unless you are officially registered as an organ donor.
Ultimately, it is very important to have your affairs in order before you pass away to avoid any potential disputes. Call Friedman Lurie Singh & D’Angelo on 9254 0000 to speak to us today about preparing a will or to discuss your deceased estate planning requirements. Our team of lawyers in Perth are ready to help you today.