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Cremation Services · a guide by Dotto

Wishes in a will, and whether they bind

A will is a natural place to write down a wish to be cremated, but whether anyone must follow it depends on the state and on which way the wish runs. In Queensland, signed instructions to be cremated must be followed by the personal representative, if permission to cremate is granted; in New South Wales, the executor is not legally bound by funeral directions in a will, except that the body must not be cremated if the will says so.

General information, not legal advice. These rules come from Queensland’s Cremations Act 2003, Cemeteries & Crematoria NSW, South Australia’s Law Handbook and Tasmania’s Public Trustee. A lawyer or the public trustee in your state can advise on wording a will.

The four states covered here sit at three points on a line, from a preference to an instruction the law backs.

A preferenceTasmania. Tasmania’s Public Trustee says that funeral wishes written in a will do not legally bind the family or the executor; they show what the person would prefer.
A preference, with one firm lineNew South Wales. Funeral directions in a will don’t legally bind the executor, with one exception: where the will rules out cremation, the body “must not be cremated”.
An instruction the law backsQueensland and South Australia. A signed instruction to be cremated must be followed in Queensland if permission to cremate is granted, and overrides certain relatives’ objections in South Australia.

Queensland: signed instructions

Where a personal representative is arranging the disposal of the remains and knows the person “left signed instructions” to be cremated, they must make sure an application for permission to cremate is made and, if it is granted, that the person is cremated in accordance with those instructions.

The Act says in so many words that this overrides the common law, to the extent that it lets a person direct their personal representative to cremate them and qualifies the personal representative’s right to decide. The same signed instructions also switch off the rule that lets a spouse, adult child, parent or personal representative block a cremation by objecting.

South Australia: a will, or a signed and witnessed document

South Australia’s Law Handbook explains section 9(3) of the Burial and Cremation Act 2013 this way: an objection from the personal representative, a parent or a child stops a cremation, but not if the person directed cremation in their will or in another document they signed and had witnessed. The handbook adds that an executor named in a will is responsible for dealing with the body as the will directs.

New South Wales: the one firm line

A wish to be cremated is a preference the executor is not bound by; a wish not to be cremated must be followed. The application for permission to cremate asks whether the person left any written directions about how their remains should be dealt with, what they were, and whether the applicant is satisfied they were made “in a state of sound mind”.

Tasmania: a preference

Tasmania’s Public Trustee describes a will as a convenient place to record funeral wishes, and is clear that those wishes do not legally bind the family or the executor. If the family contacts the Public Trustee before the funeral, the family is told of any wishes set out in the will.

Sunlight rippling across clear shallow water over a bed of smooth grey stones
Light on shallow water. Photo by CoppertopsRB on Pixabay

The timing problem

Whatever the law says, a will has to be read in time to matter. Cemeteries & Crematoria NSW notes that “typically a will is not made available until after the funeral.” Tasmania’s Public Trustee gives the same warning, and suggests making sure loved ones know your wishes in case the will is not reviewed until afterwards.

So it helps for the wish to live somewhere besides the will. Both bodies say the same thing in different words: tell the people who will be making the arrangements. Cemeteries & Crematoria NSW suggests recording your preferences and making sure your next of kin know where they are kept.

What a will can say about a funeral

Tasmania’s Public Trustee gives examples of funeral wishes a will can hold. In summary, they cover the big choice (burial or cremation, and where the body or ashes should rest or be scattered), the shape of the farewell (any religious requirements, music, and whether donations should go to a charity instead of flowers), and the money (how much should be spent, and how it is to be paid, for example from a prepaid funeral or funeral bond). It also mentions donating the body for medical purposes, and naming a preferred funeral director.

Victoria and Western Australia are not set out here. For those states, a lawyer there can say how a written wish is treated.

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