This page sets out, state by state, who may apply for a cremation and who may stand in its way. It covers New South Wales, Victoria, Queensland, Western Australia and South Australia, each from that state’s own source.
Who the rules name
| State | Who the rules name | Where it is written |
|---|---|---|
| New South Wales | NSW Health’s form expects the person applying to be the executor of the estate or the nearest surviving relative, or else some “other proper person”. Anyone who is neither executor nor nearest relative states their relationship, why they are applying, and their written authority. | NSW Health’s application for permission for cremation |
| Victoria | The applicant, or a person acting for them such as a funeral director, applies to a cemetery trust that provides cremation. The application form records the applicant’s relationship to the person who died. | Victoria’s Department of Health, Cremations |
| Queensland | A close relative, or the personal representative (the executor or administrator of the estate), either in person or through an agent such as a funeral director. If none of them applies, another adult may, with “a satisfactory explanation” of why they are applying. | Cremations Act 2003 (Qld), section 6 |
| Western Australia | Where a family arranges the funeral itself, the Metropolitan Cemeteries Board says the applicant for the permit is usually the senior family member, or another person who lawfully has possession of the body, and signs the cremation application as the Administrator. | Metropolitan Cemeteries Board, Choosing a Funeral Director |
| South Australia | The Law Handbook says an executor named in a will is responsible for dealing with the body as the will directs. Without a valid will, courts have generally treated a person eligible to apply for letters of administration as having the right to attend to the “burial arrangements”, though that right “is not absolute”. | South Australia’s Law Handbook, Next of Kin |
Queensland’s Act gathers the executor and the administrator of an estate under one term, the “personal representative”. In South Australia, where there is no valid will, the handbook looks to the person eligible to apply for letters of administration.
“Next of kin” is not always a legal title
Families often assume the closest relative decides everything. South Australia’s Law Handbook points out that “next of kin” has no general standing in law there: only particular Acts give particular people particular rights, and the Burial and Cremation Act 2013 (SA) is one of them.
So it can help to ask a narrower question: who does this state’s law name, for this step? The answer can differ between applying for the cremation, objecting to it, and deciding what happens to the ashes. In South Australia, for instance, the handbook says the executor decides whether the ashes are kept or disposed of.
When someone objects
Three of the states covered here say something specific about an objection.
Queensland
A coroner or doctor must not issue permission to cremate if they know that a spouse, adult child or parent of the person, or the personal representative, objects. The person in charge of a crematorium is bound the same way. Neither rule applies if the person who died left signed instructions to be cremated.
South Australia
The handbook’s summary of section 9 of the Burial and Cremation Act 2013: an objection from the personal representative, a parent or a child stops the cremation, unless the person directed cremation in a will or another signed and witnessed document. A spouse or partner cannot object under this rule unless they are also the personal representative.
New South Wales
The application asks whether all near relatives have been told about the proposed cremation, and whether any has objected. If one has, the applicant writes down the reasons. The applicant signs it as a statutory declaration before an authorised witness.
If a disagreement will not settle
This guide does not take sides in a family disagreement. What the South Australian handbook does describe is how a court approaches one: in a dispute over where someone is buried, the court weighs common law principles against practical matters, and takes cultural, spiritual and religious factors into account. Disputes about the cremation of someone who died without a will are governed by the Burial and Cremation Act 2013.
A lawyer, or a legal aid service in the state, can explain where a family stands. In South Australia, the Legal Services Commission lists a free legal helpline on 1300 366 424.
Tasmania, the ACT and the Northern Territory
This page covers the five states above. For a question in Tasmania, the Public Trustee’s page on funeral wishes and wills is a starting point; in the ACT, Access Canberra’s pages on deaths; and in the Northern Territory, the Northern Territory Legal Aid Commission.