Funeral Wills and Estates Lawyers NSW

One of the first things an Executor must do after a person dies is to make arrangements for the funeral, burial or cremation of the deceased person’s body. However, do you know it is illegal to cremate a person’s body if the person has left a written direction stating he or she does not wish to be cremated? Even if the deceased person does not specifically say he or she does not want to be cremated but has, rather, expressed a wish to be buried, this is sufficient to indicate that the deceased person does not wish to be cremated.

The relevant legislation in NSW is the Public Health (Disposal of Bodies) Regulation 2002, reg. 34, which says:

No cremation against dead person’s wishes:

  1. A person must not cremate the body of a dead person if informed that the latter has left a written direction that his or her body was not to be cremated or that it was to be disposed of by some other means.
  2. A person must not cremate the body of a dead person if informed that the latter has left a written direction that a particular method of cremation was, or was not, to be used in the disposal of his or her body, otherwise than in accordance with that direction.

Frequently, a person includes such a direction in his or her Will. Therefore, it can be very important for an executor to locate the Will before making arrangements for the funeral. An executor should also be aware that the deceased person may leave directions in some other form of writing (such as a letter).

The bottom line is: if the Executor is aware of the deceased person’s wish not to be cremated, the Executor must comply. If the executor proceeds with a cremation, criminal penalties may apply.

A person may also express a wish about organ donation in his or her Will. However, a Will is not the best place to express such a wish. It should be communicated to the deceased person’s family members prior to death as a direction in a Will may be found too late for organ donation to take place. Even if a person has registered a wish to donate organs on the national Donor Register or Driver Licence, it is necessary to discuss the decision with family members because their consent will still be required.

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