A Dead Body is NOT Property – But can you control what happens to your body in your will?

As a general rule, there is no property in a dead body. That means that your body is not property, it cannot be owned by any person, you cannot “give” it away under your will, and your control over your body after you die is limited.

However, you can specify two things in your will:

  1. How you wish your body to be disposed of (cremation or burial); and
  2. Whether or not you would like to donate your organs.

Cremation or Burial

You can leave instructions in your will regarding your funeral arrangements. However, your executor does not have to follow these instructions and they will have the power to make any arrangements which they see fit subject to any laws which may apply.

If you leave signed instructions providing that you do not wish to be cremated, the executor will be bound by those instructions. Relevantly, the NSW Public Health Regulations provide that:

(1)  A person must not cremate the body of a dead person if the person is aware that the proposed cremation would be contrary to a written direction left by the dead person.

Maximum penalty—10 penalty units.

(2)  A person must not cremate the body of a dead person otherwise than in accordance with a written direction left by the dead person about the particular method of cremation that was or was not to be used.

Organ Donation

If you wish to be an organ donor you should register your consent to donation at donatelife.gov.au. You may also include a clause in your will, but this clause is not binding and may be of little use as the deadline for organ donation may expire before your will is reviewed.

Burial Rights – Who has the right to decide what happens to your body?

Young J in Smith v Tamworth City Council set out a number of propositions which summarise the legal position with respect to burial rights in NSW:

  1. The executor has the right to arrange for burial of the deceased’s body.
  2. A person has no right to dictate what will happen to their body, apart from appointing an executor.
  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. If no executor is named, the deceased’s closest relative will have the same privileges as an executor.
  5. The right of the surviving spouse or de facto partner 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 can 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 their 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.

DISCLAIMER: The information provided above is published for general informational purposes only and is not intended to be nor should it be relied upon as a substitute for legal or other advice.