Right of burial: who has the right to decide?

While right of burial seems like a pretty morbid subject, it is a hugely important issue for the loved ones of a deceased person and to the dignity of the deceased. I think that the following from a very old case in the Rhode Island Supreme Court encapsulates the importance of the issue:

“the burial of the dead is a subject which interests the feelings of mankind to a much greater degree than any matters of actual property.”

There is no property in a dead body. Whilst that is true, there certainly are rights in relation to the authority to deal with and dispose of a dead body. I have recently had to advise a client on the issue where there was an argument between her and her son about the authority in relation to her deceased mother. It got my interest and so I did a little research on what the actual priorities are where there is a dispute between family members as to how and where a deceased person’s body should be disposed of.

Most of the recent cases arise in situations where the deceased died without a will (intestate), and the question is often ‘who is the next of kin?’ Some recent cases, such as Dragarski v Dunn [2019] NSWSC 300 turn on a determination of whether a person was at law the de facto spouse of the deceased.

The decision of Young J in Smith v Tamworth City Council & Ors [1997] NSWSC 97, after a very detailed analysis of English and American law, sets out the principles which apply where a dispute arises around the rights and responsibilities for the disposal and interment of a deceased’s body.

The case involved a dispute between the biological and adoptive parents of the deceased in relation to the erection of a headstone where the deceased died without a will (intestate). As most will know after adoption the biological parents’ parental rights and kinship are abrogated and the adoptive parents become the parents at law. As such Young J found that the biological parents had no legal right to determine the erection of the headstone or what was inscribed on it, despite having paid for the burial plot.

In his judgment Young J usefully lays done the principles which have emerged as authority from a long line of cases.

1. If a person has named an executor in his or her will and that person is ready, willing and able to arrange for the burial of the deceased’s body, the person named as executor has the right to do so.
2. Apart from appointing an executor who will have the right stated in proposition 1, and apart from any applicable statute dealing with the disposal of parts of a body, a person has no right to dictate what will happen to his or her body.
3. A person with the privilege of choosing how to bury a body is expected to consult with other stakeholders, but is not legally bound to do so.
4. Where no executor is named, the person with the highest right to take out administration will have the same privilege as the executor in proposition 1.
5. The right of the surviving spouse or de facto spouse will be preferred to the right of children.
6. Where two or more persons have an equally ranking privilege, the practicalities of burial without unreasonable delay will decide the issue.
7. If a person dies in a situation where there is no competent person willing to bury the body, the householder where the death occurs has the responsibility for burying the body.
8. Cremation is nowadays equivalent to burial.
9. A person who expends funds in burying a body has a restitutionary action to recover his or her reasonable costs and expenses.
10. A Right of Burial is not an easement, but a licence: it is irrevocable once a body has been buried in the licensed plot.
11. The cemetery authority is able to make reasonable by-laws as to the maintenance of the appearance of the cemetery.
12. Subject to such by-laws, the holder of the Right of Burial has the power to decide on the appearance of the grave and headstone.
13. The reasonable cost of a reasonable headstone is recoverable from the deceased’s estate.
14. The holder of the Right of Burial cannot use his or her right in such a way as to exclude friends and relatives of the deceased expressing their affection for the deceased in a reasonable and appropriate manner such as by placing flowers on the grave.
15. After the death of the executor or administrator, the right to control the grave passes to the legal personal representative of the original deceased, not the legal personal representative of the holder of the Right of Burial.

So, in simple terms, if there is a will, even though probate has not yet been granted, the appointed executor will have the right to determine the disposal and interment of the body. Where there is no will, then the order of priority is that which occurs for entitlement under an intestate estate (where there is no will) ie spouse, child, parent, sibling.