When a parent dies, families often have to make decisions about the funeral within days, while they are grieving. Should there be a burial or a cremation? Which religious or traditional rites should be followed? Should the parent be buried in Australia or returned to their hometown? If the parent never said clearly what they wanted, these questions can divide a family at the worst possible time.
Who decides?
In Victoria, the executor named in the Will generally has the right to decide how the body is dealt with. If there is no Will, it is usually the person entitled to administer the estate, often the surviving spouse or adult children.
Funeral wishes written in a Will are generally not legally binding, but they carry real weight. Executors and courts take them seriously, and clear wishes usually prevent disagreement before it starts.
Why the Will alone is not enough
A Will is often not located or read until after the funeral. If your wishes appear only in your Will, your family may not see them in time. It is better to:
- record your wishes in a separate document, kept with your Will and given to your executor;
- tell your family directly;
- consider a pre-paid funeral or funeral bond, which can also record your choices.
Matters worth recording
- burial or cremation, and where;
- religious or cultural rites, such as Buddhist, Taoist, Christian or traditional Chinese ceremonies;
- whether you want to be buried with a spouse or near family, and any existing family plot;
- whether your remains or ashes should be returned to another country;
- who you would like to be involved in the arrangements;
- how the funeral should be paid for.
Repatriation overseas
Many families wish to return a parent to Malaysia, Hong Kong, mainland China, Taiwan or elsewhere. This requires coordination between the funeral director, consulates, and authorities in both countries, and involves additional documents and costs. Ashes are generally simpler to transport than a body. If this matters to you, record it clearly and discuss it with your family in advance.
Disputes
When family members disagree about a funeral, the matter can end up before the Supreme Court on very short notice. These cases are distressing and expensive. Clear written wishes and the right choice of executor are the best protection.
How Chua Tan Associates can help
As part of preparing your Will, we can help you record your funeral and burial wishes and choose an executor who will respect them. If a dispute arises after a death, we can help resolve it quickly, including through mediation. We advise in English, Mandarin and Cantonese.
Related reading
Chua Tan Associates acts for families, executors, trustees and their professional advisers in estate planning, estate administration and estate disputes in Australia and across borders. To arrange a confidential consultation, please contact our Melbourne office on +61 3 9602 3988 or submit an enquiry. Advice is available in English, Mandarin and Cantonese.
Justin Chua (蔡智勋), lawyer and mediator, Chua Tan Associates, Melbourne. General information only, not legal or tax advice. Victorian law unless stated otherwise.
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