The burial of a person after death can be an emotionally charged time for many families, and can unfortunately lead to disputes. Spouses, de-facto partners, and children (who may be from multiple different relationships) may have different views as to appropriate way to honour their loved ones. This can add unwanted stress to what may already be the most difficult time in your family’s life.
Is my body property?
The general rule with respect to dead bodies can be gleaned from the old, and often quoted, case of Williams v Williams
(1882) 20 Ch D 659 where Kay J stated:
“a man cannot by will dispose of his dead body. If there can be no property in a dead body it is impossible that by will or any other instrument a body can be disposed of.”
Put simply, your dead body is not property, so at law you cannot control or “give” it away under a will.
Where there’s a will there’s a way
Despite the general rule, people often do, and should, specify two things in their will:
- how they wish their body to be disposed of (e.g. buried or cremated); and
- whether or not they want to make their organs available for donation.
On the latter point, the general rule about no property in the body is trumped by the operation of statutory provisions that allow for your organs to be donated. In addition to specifying your decision regarding organ donation in your will, you can also note your wishes by registering online at www.donorregister.gov.au
With respect to the former, it is important to express your wishes in your will so your executor knows what you would have them do. It is ultimately your executor who is responsible for your burial. To this end, your executor has the legal right to custody and possession of your body until your burial: R v Fox  2 QB 246. This has been described as a “quasi-proprietary” right to the body by Young J in Smith v Tamworth City Council (1997) 41 NSWLR 680 (Tamworth City Council).
What happens if there is no will?
Unfortunately, where a person dies intestate it can be difficult to determine who holds burial rights. This problem can be made all the more challenging to resolve as burial often needs to take place shortly after death. The added time pressure can exacerbate the difficult emotional journey the family of the deceased is undergoing. The issue can also become more difficult where burial has already occurred and a member of the family disagrees with the method.
Ultimately, the Court will have to determine the appropriate person with respect to the particular facts of the case, with respect to any “religious, cultural or spiritual matters”: Jones v Dodd  SASC 125. However, there are a number of principles to help guide the Court in the given circumstances. These come from Young J’s decision in Tamworth City Council, and are as follows:
- where there is no executor, the person with the best claim to administration of the deceased’s estate will have the privileges of the executor;
- a surviving spouse or de-facto partner will be preferred to the rights of children; and
- where there are two people with equal ranking, the practicalities, of ensuring burial takes place without delay, will decide the issue.
Despite these guiding principles, the matter is ultimately one for the Court. It may be made all the more challenging where there may be a dispute as to whether a person is a de-facto partner of the deceased. The risk of uncertainty in this area further emphasises the importance of keeping a current will – a will is not just about your personal assets, but about your body as well.
To read the first in our series about death in contemporary Australia, click here.