Making funeral arrangements is often an emotionally-charged time particularly if final wishes haven’t been discussed prior to the passing of a loved one. Problems can arise when multiple family members provide conflicting wishes to the funeral home who need clarity on how to proceed.
This blog examines whose wishes ultimately take precedence when it comes to funeral arrangements and answers some common questions our clients have had regarding how to proceed if there is a dispute.
Can I take legal action over funeral arrangements?
Although they may seem like the last word, funeral wishes expressed in a Will are in most cases not legally binding.
The deceased’s executor/administrator generally takes responsibility for funeral arrangements. This includes details such as the date, location, and guest list.
This can come as a shock to close loved ones, who may have expected to have the final say.
The executor/administrator of the estate has to take into account the views of the family, while considering religious and spiritual practices, and also different cultures. However, the executor/administrator has the final responsibility and authority when making the funeral arrangements.
That being said, it is possible to legally contest the terms of a Will, including funeral arrangements. However, there are strict criteria on who is eligible to do so, as well as time limits to adhere to.
Who should the funeral home be taking their instructions from?
The funeral home should be instructed by the legal personal representative of the deceased. This can be an executor appointed under a Will or an administrator of an estate (or the person entitled to be appointed administrator).
One of the very first tasks that the legal personal representative must attend to is making the funeral arrangements.
In the ideal scenario, the deceased will have expressly communicated their wishes for their funeral to the executor, separately from the guidance in their Will (which is non-binding). For example, the deceased may have made a specific funeral plan, written a letter, or even just spoken about their wishes. While we often avoid the topic of death, providing these details is highly recommended as it can help to minimise disputes later between loved ones.
When making the decision regarding the burial or cremation of the deceased, the executor/administrator should take into account any views expressed by the deceased. However, the executor/administrator is not legally required to do so.
Can I make funeral arrangements without the executor?
Occasionally the legal personal representative is not notified about the funeral, and the family and friends of the deceased proceed with funeral arrangements regardless. This approach is not recommended as it poses the risk of these family plans being overruled by the legal personal representative.
If the Will is invalid, does not exist, or hasn’t named an executor, then the power to make decisions is assigned to the closest family member or person. This person is then responsible for managing the deceased’s property as would be appointed by the Court. This person is the one with the best legal claim to deal with the deceased’s property, as would be appointed by the Court.
Who is legally responsible for the funeral costs?
First and foremost, the deceased estate must cover funeral costs. The deceased estate includes the deceased’s assets and property. It must pay for burial, cremation, or other legal disposition costs and expenses such as catering at a funeral or similar service.
Funeral costs may be paid from the deceased’s bank account if sufficient funds are available.
First, the bank’s requirements must be met to allow access to these funds. This is an administrative task that the executor handles.
If the estate does not have enough funds to pay for the funeral and there are no family members who can contribute, depending on the circumstances the Government may provide financial assistance through the likes of a funeral grant.
The estate must reimburse someone who pays for the funeral costs. For example, if the deceased’s bank account is difficult to access quickly, a family member might cover funeral costs in the meantime to expedite matters. They are then entitled to be reimbursed by the estate.
Are funeral wishes in a Will legally binding?
No – as mentioned, the funeral wishes in a Will are not legally binding. This means that the executor is not legally bound to follow them and has the final say in the funeral arrangements.
Ideally, these wishes may be able to be carried out, but other factors may come into play.
Three major considerations must be addressed: cost, practicality, and the law.
Can you legally stop someone from attending a funeral?
As with all funeral wishes expressed by the deceased in a Will, intentions regarding who may attend their funeral are not legally binding. In other words, legally there is no way to stop unwanted family from attending a funeral service.
The deceased’s legal personal representative has the discretion to decide if someone may be prevented from attending a funeral, and how they will arrange it.
Whilst limiting funeral attendee numbers is very difficult for many mourners, these restrictions must be adhered to. When numbers must be kept to a limit, ultimately the legal personal representative decides who will be on the list – and who might have to attend virtually instead or not at all.
Who has rights to ashes after cremation?
This depends on who applied to the crematorium to have the deceased cremated. Whoever made the application will have control of the ashes.
In many cases, this will be the executor, however, it may also be a family member.
If there is any dispute regarding possession of the ashes, then the named executor will prevail.
What happens if there is a dispute over funeral arrangements?
The death of a loved one is always difficult, and tensions over conflicting wishes for a funeral can make it even more so.
If you believe that the funeral plans made by an executor or other family members are not being true to the wishes of the deceased, you may be able to legally challenge this. This may involve contesting the Will or challenging the executor or administrator’s decisions.
Our experienced Wills & Estate Law team are here to help you understand your legal rights when it comes to your loved one’s estate.
The information is provided as an overview in regards to who has the final say in making funeral arrangements and not legal advice.