Anyone who has spent much time in Bali knows that funerals and the accompanying processions can be massive, colourful affairs. On a recent stay in Ubud, Emily watched the fascinating preparations for the upcoming funeral of a member of the Ubud Royal family at the Ubud palace. This involved members of the community making a huge funeral tower (known as a ‘bade’ ) and a life-sized bull-shaped sarcophagus. The body was later carried in the tower in a procession to the cremation grounds, and then transferred into the sarcophagus which was then burnt to “facilitate the journey of the deceased’s soul into the afterlife”.
Given the type of matters we deal with, this had us thinking about the legal issues relating to funerals and cremation in Western Australia
- Who’s in Charge? As there are no property rights in a body, it is not owned by the executor, but held on a form of trust by the executor. The executor has the prima facie right to take possession of the deceased’s body and is responsible for its proper disposal.
- What about the Family? What about the Will? A prudent executor would act, if possible, pursuant to any written wishes in the Will and preferably also with the consensus of the beneficiaries in choosing how to dispose of the body (especially in regard to a choice of ritual or religious service). A will-maker’s wishes as to his/her funeral, if noted in a Will, are not generally binding on an executor. This is reasonable, given that there may be insufficient funds for those funeral wishes to be carried out, or the deceased may die overseas or in other circumstances which render those wishes impossible or simply impracticable to carry out.
- There’s always an exception- a special note about cremations– Cremation is now the most popular choice for the disposal of a body in Australia. It should be noted that in Western Australia where signed instructions have been left by a deceased person stating that they do not wish to be cremated, the Cremation Act 1929 (WA) provides that the executor must ensure that cremation does not occur. This is subject to there being some concern by the Chief Health Officer named in the Public Health Act 2016 (WA). Further, unless the deceased has in a Will or signed memorandum directed himself/herself to be cremated, the objection to cremation by a widow, de facto partner or next of kin will prevent the cremation.
- Is there any point in putting funeral wishes into my Will? In our view directions in a Will regarding wishes in terms of disposal of a body are still worthwhile making, as they can provide useful guidance to those left behind and in some circumstances may prevent disputes. Having said that it is also worthwhile discussing your wishes with your loved ones before you die, as sometimes the Will is not read until after the funeral, at which point it is too late to receive any guidance from the Will.
Having witnessed the extravagance of the Ubud royal family preparations, our next post which will relate to “What are reasonable funeral costs?”