Your burial or cremation and funeral

Planning the Inevitable: Who Steps In When You’re Gone?

When you die, it is your executor who is responsible for your burial or cremation and funeral. If you die without a Will and therefore do nott have an executor appointed, your next of kin is responsible. A de facto is considered next of kin and ranked higher than other relatives of the deceased, such as children, parents and siblings.

If you die without a next of kin, it is the owner of the house in which the deceased died that has the responsibility of laying the body to rest.

Any expenses incurred by the executor, next of kin or house owner in the process of burying a deceased’s body may be reimbursed to them by the estate. Funeral and disposal of body expenses are inherently ‘testamentary’ expenses as they are solely related to the administration of the estate.

Directions regarding funeral arrangements that may be described in a Will, are not binding on an executor. This is because the testator, once they die, has no property in their own body and therefore cannot bind the executor to bury or cremate the body, play specific songs at the funeral, or hold it at a certain location. It is to the responsibility of the executor or next of kin with highest entitlement to the estate to arrange the deceased’s funeral.

The exception to this is if there is a direction in a Will to not cremate the deceased’s body. In this case, the executor is unable to cremate the deceased’s body and may be subject to serious fines if they cremate the body. For example a breach of Part 8, Division 4, of the Public Health Regulation 2022 (NSW) may incur 10 penalty units. In Queensland a coroner must not permit cremation if, in the absence of a signed direction by the deceased to be cremated, a spouse, adult child or parent or legal personal representative objects.

In the case of Smith v Tamworth City Council (1997) 41NSWLR 680, Justice Young set out a number of legal positions in relation to disposal of bodies. Some of these positions include (but are not limited to) the following:
(a) A person with the privilege to choose how to bury a body is expected to consult with other stakeholders but is not legally bound to do so;
(b) Where two or more persons have an equally ranking privilege, the practicalities of burial without unreasonable delay will decide the issue;
(c) The reasonable cost of a reasonable headstone is recoverable from the deceased’s estate;
(d) 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.

In a recent matter of Mackie v Tedesco [2025] NSWSC 1345, an urgent application was made to the Supreme Court of NSW by the granddaughter of the deceased. She was not the executor of the estate, rather a lawyer had been appointed and the deceased had discussed her funeral wishes with her son.

In that case, the granddaughter, fearful that she would not have an opportunity to view her grandmother’s body, applied urgently to the Court to seek orders that she be granted a viewing of the body. Ultimately, the Court granted her the right to view the body, but not to touch the body, as she sought. Justice Meek said at paragraph 69 of that case:
“The Court is sensitive and does intend to be appropriately respectful of the parties in the midst of their grief. However, law is often a blunt (and sometimes can be an insensitive) instrument, to resolve what are essentially relational disputes between parties. In the circumstances of this case, that truism is strongly evident. That is precisely why the Court requested the parties to attempt to reach an agreed outcome”.

Treatment of a deceased’s body is an important aspect of grief, as well as death administration. If you have specific wishes in relation to your funeral and how your body is to be treated after your death, it is important to make those wishes clear in your Will. It is also important to talk to your family members about those wishes, so that they can calmly and respectfully organise your funeral without having to consult your Will after your death.

Here at de Groots wills and estate lawyers, we can assist you with your estate planning and documenting your funeral wishes accurately and appropriately in your Will.

By Julia Tutt – Senior Associate

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How de Groots can help you?

de Groots wills and estate lawyers, which was established in 1986, specialises in wills and estate planning along with estate administration and estate litigation.

Our wills and estate team are committed to providing personal, confidential and professional advice tailored to your situation. The estate planning team assists clients in relation to estate planning ranging from simple to complex matters.

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