We answer some of the most frequently asked questions regarding funerals below:
Can I put my funeral instructions in my will?
Of course! Family members and legal personal representatives (whether the executor or administrator of your estate) often look to the will when arranging your funeral. They may follow the wishes and directions in your will, however, they are not required to by law.
It was said in Privet v Vovk:[i]
[W]ishes expressed by a deceased person, whether in a testamentary document or otherwise, are not binding on the persons on whom the duty falls of disposing of the remains and will not be enforced by a court.
Who is in charge of the funeral?
As suggested above, it is the legal personal representative who has the duty to dispose of a deceased’s body.
Therefore, it is wise that you appoint an executor who you trust will follow your funeral wishes.
Who pays?
The legal personal representative has a duty to pay the deceased’s debts. This is a duty to pay debts incurred by the deceased during their lifetime, as well as debts incurred after.
The legal personal representative is entitled to be indemnified from the deceased’s estate for expenses incurred by them in the administration of the estate.[ii]
If another person arranges the funeral, then that person is liable to pay the costs. However, if the estate has assets, then the legal personal representative is required to repay the costs to them.[iii]
Whoever arranges the funeral needs to be careful how much they spend as only reasonable funeral costs can be recovered.[iv]
What do funeral expenses include?
Funeral expenses[v] include reasonable costs of:
- Preparation and delivery of the body;
- Burial or cremation;
- Burial plot; and
- Death notice in the newspaper
It does not include mourning expenses.[vi]
What about headstones and tombstones?
The case law goes both ways in relation to the placement and costs of headstones and tombstones. Some cases state that a legal personal representative may erect a tombstone at a reasonable cost, even if the relatives do not agree. A suitable tombstone may be allowed,[vii]particularly where the estate is solvent.[viii]
It was stated in a relevant New South Wales’ case that the ‘reasonable cost of a reasonable headstone is recoverable from the deceased’s estate’.[ix]
Where do funeral expenses get paid from?
Usually a person’s will says where debts, including funeral expenses, should be paid from. This is generally from the residue of the estate (also called the residuary estate). The residue is the assets remaining after any gifts are distributed.
Payment of reasonable funeral expenses are a priority debt, meaning it is a first charge on the estate.[x]
How much should be spent on a funeral?
Reasonable funeral expenses can be recovered from the estate. It has been said that: “[t]he responsibility at law for funeral expenses is not unlimited, and only extends to ‘reasonable’ expenses”.[xi]
But what does ‘reasonable’ mean in this context? The ‘reasonable expense’ is not a fixed amount or certain percentage of the estate. It will depend on the circumstances of the matter. Factors to be considered include:
- The deceased’s wishes and directions in their will – for example, there may be an argument that if the deceased requested cremation, but the legal personal representative chose burial, then the costs to bury that exceed the costs of cremation may not be reasonable;
- The deceased’s ‘position in life’[xii] including their social standing;
- The deceased’s cultural and religious beliefs;[xiii]
- Whether or not the estate is solvent.
Arguably, beneficiaries affected and the legal representative could agree to excessive funeral costs being spent from the estate, however, the legal personal representative should make sure all remaining debts could be fully paid. Any agreement, of course, should be drafted by a legal professional with all parties having the opportunity to obtain independent legal advice first.
If you wish to express funeral intentions in your will, or are an executor or administrator of a deceased estate, or are a beneficiary with concerns about a funeral, you should contact us to discuss. Our first appointments are free, with no obligation.
[i] [2003] NSWSC 1038, [12]
[ii] Rees v Hughes [1946] 1 KB 517
[iii] Ibid
[iv] Knight v Knight (1885) 11 VLR 659
[v] Public Trustee v Bernarczyk and Kijas [1959] SASR 178
[vi] Johnson v Baker (1852) 2 C & P 207;
[vii] Grunden v Nissen [1911] VLR 97 at 106; Nissen v Grunden (1912) 14 CLR 297; Chesterman v Mitchell (1923) 24 SR (NSW) 11, cf Knight v Knight (1885) 11 VLR 659
[viii] Bridge v Brown (1843) 2 Y & C Ch Cas 181; Estate of Dean (1885) 11 VLR 761.
[ix] Smith v Tamworth City Council (1997) 41 NSWLR 680
[x] Stag v Punter (1744) 3 Atk 119; R v Wade (1818) 5 Prince 621
[xi] Chernichan v Chernichan (Estate) 2001 ABQB 913, [11]
[xii] Bridge v Brown (1843) 2 Y & C Ch Cas; Re Walter (Deceased) [1929] 1 Ch 647; Chernichan v Chernichan (Estate) 2001 ABQB 913, [11]
[xiii] Gammell v Wilson [1982] AC 27; Chernichan v Chernichan (Estate) 2001 ABQB 913, [11]