funeral arrangements dispute

Who has the right to make decisions about the deceased’s funeral?

Dealing with the Funeral Director

There are often funeral arrangement disputes between family members as to who can arrange the funeral of a deceased loved one.  The poor funeral directors have to then work out who can they legally take as their client. The law,  at least in Victoria, states that it is the executor of the will who has the sole power to decide funeral and burial arrangements.

If there is no will then the next of kin rule applies unless the person is eligible to apply for Letters of Administration (Personal Legal Representative when there is no will in existence).

You can see that there would be problems when a will has not been updated and the executor named was named decades ago and the family dynamics have changed.    A sister or brother or friend may have been named when the deceased would have liked their current partner to have the right to make funeral arrangements.  When the current partner and other family members are in a feud it can get rather ugly at the funeral parlours when both insist they have the right to organise the funeral.

Having an up to date will can solve that problem- a will that sets out who the executor is, and who will replace them in the event the executor does not want to act or is no longer alive.

What if there is a Coroner’s Report involved?

Families wishing to organise the funeral of a loved one whose death has been reported to the court, do not need to wait for the coronial investigation to be completed before beginning to make their arrangements. Families can make contact with a funeral director at any time.

The funeral director will liaise with the family and Coroners Court of Victoria staff to help plan the funeral. This includes providing information about when the person is likely to be released from the care of the court. A coroner will usually authorise the release of a person once all the relevant medical processes required for their investigation have been completed.

Families are not obliged to use the funeral director who brought their loved one into the care of the court.

The Coroners Office recognises “the senior next of kin” for this purpose which is usually determined by the following order of priority:

  • if the person, immediately before death, had a spouse or domestic partner—then the spouse or domestic partner is the senior next of kin
  • if the person, immediately before death, did not have a spouse or domestic partner or if the spouse or domestic partner is not available—then a son or daughter of, or over, the age of 18 years is the senior next of kin
  • if a spouse, domestic partner, son or daughter is not available—then a parent is the senior next of kin
  • if a spouse, domestic partner, son, daughter or parent is not available—then a sibling who is of, or over, the age of 18 years is the senior next of kin
  • if a spouse, domestic partner, son, daughter, parent, or sibling is not available—then a person named in the will as an executor is the senior next of kin
  • if a spouse, domestic partner, son, daughter, parent, sibling or executor is not available—then a person who, immediately before the death, was a personal representative of the deceased is the senior next of kin
  • if a spouse, domestic partner, son, daughter, parent, sibling, executor or personal representative is not available—then a person determined by a coroner to be taken as the senior next of kin because of the closeness of the person’s relationship with the deceased person immediately before his or her death.

 

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