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Whatsapp Under Australian common law, you can leave your estate and assets but not your body

You might have an idea of what you'd like to happen to your body after you die, but the instructions you leave won't be legally binding. The Law Report learns why that can be a huge problem, particularly for Indigenous Australians, and why the law is under review.

'Morris was gay. He was a good friend of mine.'

Chris Gill is recalling the death of his friend, who had long been estranged from his disapproving parents.

The law quite clearly states that it is the executor who has the sole power to decide funeral and burial arrangements.

'His parents cut him off, lectured him about the sinfulness of his life. When he died, they ignored his funeral instructions on the kind of non-religious funeral that he wanted.

'Morris's funeral ended up being held in a church with the eulogy given by a priest who had never even met Morris. It was an awful eulogy. And there was a reading from St Paul, a lesson about how sons and daughters must obey their parents.'

To this day, Morris's parents would still be legally within their rights to do this.

It's a scarcely known fact, but in Australia instructions left by the deceased are not legally binding when it comes to funerals and burials.

'Most people in the community think that if you put your wishes in a will or even perhaps in writing, those wishes have to be followed. In the law they do not have to be followed,' says Philip Cummins, chair of the Victorian Law Reform Commission.

'The law quite clearly states that it is the executor who has the sole power to decide funeral and burial arrangements.'

While there are slight variations from state to state, particularly with regard to instructions surrounding cremation, the law across Australia is broadly the same and is derived from a 19th century English law.

'What is not understood widely is that the law says that there is no property in a dead body,' says Mr Cummins.

'You can leave your estate, you can leave your assets, but you cannot leave your body because the law at common law is that there is no property in a dead body.'

Why this impacts Indigenous Australians

Of the 47 legal disputes over burials and funerals to reach Australian courts over the last 30 years, half have involved Indigenous people.

Yorta Yorta man Ian Hamm explains. 'We make up one to two per cent of the population nationally, but 50 per cent of the cases are Indigenous people around this particular subject. That shows the level of disruption to Aboriginal tradition there has been, and often seeking remedy through the courts is the only way to do it,' he says.

'It shows that this is a significant issue for Aboriginal people.'

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Whatsapp Half the disputes over burials and funerals that reach the courts in Australia involve Indigenous people.

In Aboriginal tradition, the return of the body to country is of extreme significance.

'People are buried on country. In old times, before white settlement, my own people had a practice of tree burials, that happened in northern Victoria, rather than in-the-ground burials,' says Hamm.

'People want to return of their body to country because that's where their spirit belongs, that's where their ancestors are, that's where the places of the Dreaming for their particular group is from and it's important that you spend your eternity with the spirits that you belong to.'

Problems with this can emerge for a variety of complex reasons.

'For example, I have a background in the Stolen Generations area and you are talking about a lot of people who were removed when they were children, or indeed when they were babies, so they may have grown up in an environment where they have no connection to country or even identity or what it means to be Aboriginal for them personally or collectively,' says Mr Hamm.

'As they get older they rediscover who they are, where they are from, who their community is, who their family is, and their attachment to that becomes great, to the point where they want to have a connection to country in death that they may not have had in life.

'When you have been brought up in a non-Aboriginal environment and if you've got a non-Aboriginal spouse, it can cause a difference of opinion from your two communities—two families if you like—about what happens to your body.'

Hamm advises having a conversation with your loved ones early on in order to avoid conflicts and potential legal issues.

'In those horrible days straight after [a person's death], when emotion is driving any decision that is made, those wishes can be set aside, and legally the wishes of the person can't be rechecked because they've passed away. At the moment those who are called next of kin have the overriding say on what happens to the person's body.'

Will it change?

The Victorian Law Reform Commission is presently reviewing options for how the law could be improved.

'The law can't solve all human emotional problems, but where the law is deficient, as a lot of people say this law is, law reform should remedy that deficiency. Or where the law itself is creating the problem, law reform should resolve that problem,' says Phillip Cummins.

'The first option is to keep things as they are and perhaps put that into legislation so it's clearer than in the case law.

'The second option is to change the law so that the executor or administrator has to take into account the wishes of the deceased and the bereaved, but not necessarily be bound by them.'

Cummins suggests shifting modern attitudes have prompted the need for greater clarity in the law.

'I think particularly importantly there is today much more emphasis upon individual autonomy and your right to make your own decisions. I think that's at the centre of this whole area.

'The law can't resolve all human disputes, particularly in this very distressing area. But what we have sought is to get the community's own views on the matter.'

Listen to the full episode The Law Report takes a detailed look the law when it comes to burials and funerals.

Informative, jargon-free stories about law reform, legal education, test cases, miscarriages of justice and legal culture. The Law Report makes the law accessible.

