Most people make Wills that specify how their estate should be distributed, including specifying where their monies, home, and personal items will go. Often however, many people do not give instructions as to how they want their remains to be dealt with after death. In that instance, the law provides some direction.

In Queensland, executors and administrators have a duty to arrange for the burial or cremation of the deceased as the body is considered an estate asset. The Succession Act 1981 (Qld) also allows for funeral expenses to have priority over all other expenses, so even if there is very little money in the estate, the deceased person can have the dignity of a cremation or burial.

However, family members may have deeply held opinions about burial or cremation, or the type of memorial service that should be held, which can cause further disputes about funeral arrangements.

In the most recent New South Wales case of Dayman v Dayman [2024], the deceased died with a 1992 Will that nominated his ex-wife as the executor of his estate and did not make directions for funeral arrangements. Funeral arrangements had been delayed due to disputes about the reported cause of death, and so the deceased’s daughter made applications to the Supreme Court of New South Wales for the executor to relinquish her role and release the deceased’s body from the coroner to a funeral director for immediate cremation.

A new dispute then arose about the distribution of ashes, and the Court ultimately ordered that they be distributed equally between his daughter, his sister, and his current partner. However, the Court did not order that the ex-wife step away as executor on account of the estate being small.

The takeaway from this was that the Court recognised that religious, cultural and spiritual considerations are an important aspect of burial rights, and executors should take into account any known wishes of the deceased and consult with family members and friends when making funeral arrangements.

Certainly, making your wishes known not only simplifies the task of administering an estate for your executors, but allows your loved ones to rest assured knowing they are doing the right thing.

Bader Pendergast-Lee is a Solicitor at Zande Law Solicitors, Suite 9, Norwinn Centre, 15 Discovery Drive, North Lakes, practicing in the areas of Wills, Estates and Family Law. If you need legal advice in relation to your Will or a deceased estate matter, we encourage you to make an enquiry with our office.

The information in this article is merely a guide and is not a full explanation of the law. This firm cannot take responsibility for any action readers take based on this information. When making decisions that could affect your legal rights, please contact us for professional advice.