Are funeral wishes in a Will legally binding?
The funeral wishes in your Will are not legally binding. Your executor is not required to follow them. Do not clutter your Will with directions for your funeral and remains.
Your Will has to take a journey. It goes to the Supreme Court Probate office for your Will to be proved. It then goes to the land titles office to transfer your real estate. Your Will is then a public document at which time the ATO is at liberty to squeeze any tax it can out of your Will.
Do not put extraneous information in your Will. It just adds complexity to your Will. A Will just gives away what you own. Do not try and make it do things for which it is not designed.
Rather, speak to your executors and loved ones and let them know if you want to be buried, cremated or something else.
Can I write a letter for my funeral and body remains?
Want to put something in writing? That is fine. Just handwrite (do not type) your wishes for your funeral and remains in a letter. And keep that letter with your Will. Address the letter to “My executors and family”
Expressing your funeral wishes is thoughtful. It eases the stress on your family in making decisions on the type of funeral you want.
Sample letter as to my funeral arrangements?
Your sample letter for your executor on your funeral and what you want to be done with your body:
- The use of your body for medical purposes (eg organ donation or research and education). But make sure you have also completed all the government requirements as well.
- Funeral. Want to be buried or burnt? Do you have a location?
- Do you have a preferred funeral director?
- Have you pre-paid your funeral or burial plot? Or have you purchased bonds from the funeral director?
- Do you want a lavish funeral? Most Will makers want expenses kept to a minimum. But some funeral directors often ‘upsell’ to the grieving loved ones.
- Do you want a religious service? Is there a particular faith? Many aesthetics and agnostics scamper back to their religious affiliations when death looms.
- ‘In Memoriam’ gifts to charities or groups, rather than flowers?
- Directions such as music?
Funeral wishes are never binding in a Will or in a letter
Whether they are in the Will (not correct) or in a letter (better option) funeral wishes are never legally binding on your executor or family. But they do express your preferences.
Funeral wishes, whether they’re stated in a Will or in a letter, are not legally binding in Australia. They may express your wishes as to how you would like your funeral to be conducted, the final decision rests with your executor and family. It’s important to communicate your wishes clearly, but also understand that they might be subject to practical considerations and the circumstances at the time of your death.
Your executor is expected to talk with family members regarding this, however, they are not legally bound to do so.
Pre-paying my funeral to try and override my executors in my Will?
If you want to put in a financial incentive then pre-pay your funeral. And direct exactly what you want. (That also helps you get Centrelink as well. A contract showing you paid in full for your funeral reduces your assessable assets. This is for the Centrelink assets test. The assets test removes the amount you:
- prepay to a funeral director
- invest in a funeral bond for the funeral director.)
Who owns my dead body when I have a Will?
The legal authority to make decisions about your dead body, such as arranging for burial or cremation, typically rests with the executors named in your Will.
Who owns the dead body when there is no Will?
Britt v Office of the State Coroner [2022] WASCA 75
- The son dies. The defacto wants his body. His mother wants his body.
- Mum objects. But the body is released to his de facto partner.
The mother seeks an order for the release of her dead son’s body. The body is in Western Australia. But she wants to bury her boy in South Australia.
But the dead boy’s de facto wants to cremate the boy in Western Australia.
Mum argues that the boy did not live that much with the de facto. But that is an unfair statement. The court finds that despite periods of incarceration, the dead boy worked as a fly-in-fly-out worker. Therefore, there are periods of
time when he did not reside with his partner. This does not represent a “permanent rupture” of the relationship.
Further, there:
- is evidence of continuity until the boy dies; and
- is no reason to depart from the general principle of releasing the body to the person who was most likely to be granted administration of the deceased’s estate. In this instance, it is the de facto partner. (You seek ‘Administration’ if there is no Will.)
In contrast, if you have a Will then the Executor decides what to do with your mortal remains. Another reason everyone – young and old – should have a Will. Build a Will here.
When I am dead how do I tell my family about my Implantable Cardioverter-Defibrillator and pacemaker?
Q: My client suffered a heart attack and now has an Implantable Cardioverter-Defibrillator (ICD) inserted. He has been advised by his doctors to update his Will. This is to ensure that at death his implant is either removed or turned off. Apparently, the implant continues to try and kick-start him even though he is permanently dead.
A: How fascinating. However, for the same reason you do not put funeral arrangements in your Will you also do not put in things for the Executors to do regarding pacemakers. The job of your Will is to give away what you own. It is not there to document loans, set out burial rights, explain in which part of the back lawn you buried the gold bars or disconnect your life support, such as a pacemaker.
And besides, you are burnt or buried well before anyone gets around to looking at your Will. If you hanker to express some of the above prepare an unsigned “Wish List”. And keep it with your Will. But the better course of action is to:
- tell your Executors and loved ones about these sorts of issues
- keep notes of these issues with your Medical/Lifestyle POA
Your Will is a fighting document. It fights to reduce death duties. The divorce protection trusts stop money from being lost in the beneficiaries’ divorce courts. It has bankruptcy trusts. Do not contaminate this fighting machine with the above issues.
Can the executor stop people from attending my funeral?
The executor or the person with the right to handle the burial arrangements does not have the authority to exclude friends or family members from expressing their affection for the deceased, as long as their actions are reasonable and respectful, such as placing flowers on the grave.
Can the executor donate my organs?
The power to donate organs after death generally requires explicit registration by you as an organ donor. This is before you die. If you are not officially registered as an organ donor, the executor or family members cannot make organ donation decisions on your behalf.
