Roll over in your grave and make way for the new NSW Burial Laws
The New South Wales government survey conducted in 2013 revealed approximately 50,000 people die in New South Wales each year. Approximately 65% are cremated and 35% are buried. It is predicted that New South Wales cemeteries will be at full capacity within 30 to 40 years.
New legislation, the Cemeteries & Crematoria Act 2013 commenced on 1 November 2014 and the Cemeteries and Crematoria NSW (CCNSW) has been established in an attempt to address the diminishing availability of burial plots.
When purchasing a burial plot you are not purchasing land you are purchasing an “internment right” or the right to bury the remains of the deceased either in the earth, a mausoleum, crypt, vault, columbarium or niche wall.
There are two types of plots you can purchase.
- A perpetual plot, or
- A renewable plot.
The holder of a burial plot may bequeath the plot in their will as if it were the holder’s personal estate. The transfer must be registered with the cemetery operator and a fee applies. The executor must give written notice to the cemetery operator. If the burial plot is not bequeathed under the deceased will, the burial plot forms part of the residue of the estate.
The plot can be held individually or jointly.
Although this implies that it will remain undisturbed forever (in perpetuity) Under Section 52 of the Act, the perpetual internment right/plot can be revoked if the site is not used within 50 years from the date of purchase. The holder/owner of the plot is entitled to compensation of half the fee of another plot.
This is for a maximum period of 99 years and a minimum period of 25 years. After 25 years, the holder can renew the right of the burial plot for a minimum of five years for a fee. If the plot is not renewed the plot expires after 2 years and the site can be re-used. The remains are removed along with any memorial/headstone.
This does not apply to graves of heritage significance, and those listed by the Office of Australian War Graves. These cannot be reused.
All human remains are placed in an ossuary box and either re-interned deeper or placed in an ossuary house. Cremated remains are returned to the registered owner of the plot or scattered at the cemetery.
Remains must be dealt with in accordance with any cultural or religious practice and the remains must have been interned for a minimum of 25 years.
An internment right to a burial plot must state the holders name, the site, the number and names of persons whose remains may be interned and state whether the plot is perpetual or renewable. The holder must also specify that the right may be transferred. A transfer by the registered owner of the plot can be made to an individual or the cemetery operator.
All existing graves and burial plots continue exactly as they were prior to the new legislation. Before a gravesite can be re-used the cemetery operator must notify the registered plot holder, place a Notice on display at the crematorium and in a newspaper circulating throughout the State. After a total period of two years from the expiry date, the cemetery operator can re-use the site and remove any remains.
A cemetery operator must keep a detailed registry of burial plots and make this available for public inspection free of charge.
No internment right is requirement for scattering of cremated remains in a cemetery.
Where the deceased has not left any instructions for their burial or cremation the final decision can be made by the executor overruling the wishes of the next of kin.
Throughout the centuries people have developed unusual and unique way of leaving this life. Some people wish to use a cardboard coffin others prefer elaborate gold handles and a few have elected for their ashes to be sent into orbit around the earth. Fireworks are another exit some have chosen.
However the goodbye is always difficult for your loved ones left behind. To assist them with the process of burial and administration of your will it is important to ensure your will is valid, current to your situation and sets out your wishes with clear and precise instructions.