This issue may seem odd to some – but to others it’s very important. In Australia the final resting place has deep significance for Aboriginal people. But I knew a non-Indigenous woman who was troubled by not knowing where she would be buried. In fact, she became peaceful as she faced death only once she could visualise where she would finally go.
In another case, again involving a non-Indigenous family, there was a lot of distrust and tension between a young widow and her mother-in-law because of the younger woman’s fear that her husband’s mother would take his body back to her home state. It wasn’t until the mother-in-law promised not to interfere with her decision to bury him locally that the two women were able to relax, and move on to other practical issues related to the burial – for example, notifying family and friends where the funeral would take place.
But by then irreparable damage had been done to the broader family relationships and the young widow’s four sons lost their relationship with their father’s family as a result.
So these things can be worth resolving ahead of time, not so much for the dead but for the living.
A recent case involving this problem came before the courts in NSW – and what the judge decided is useful to know. The case was written up recently by Benjamin Goodyear in The Journal of the NSW Bar Association – Bar News, Winter 2019. ‘Determining a place of burial’, https://nswbar.asn.au/uploads/barnews/BN_Winter_2019.pdf
A man from Redfern died suddenly, without leaving a will or any indication of the place he wanted to be buried. His mother wanted to take him back to her ancestral lands in Queensland. His partner wanted him buried at La Perouse, near Sydney.
The coroner released the man’s body to his mother and his partner became aware of this. She brought an urgent application before the Equity Duty Judge for her to be appointed the administrator – in other words, the person allowed to make the decision about the burial place.
The judge agreed to this but made it clear his decision was only temporary – until a legal hearing could be held to investigate the case thoroughly. (Imagine how unsettling that would have been for everyone involved – except of course, for the deceased.)
The case went to court and the judge said that:
- If someone leaves a will, then their named executor gets to make the decision
- If there is no will the person with the best claim makes the decision
- So this case is a balancing act.
The judge looked at the man’s family history and his life before he died and decided that, even though the man had strong ties to his family in Queensland and had visited often, his life in the time before he died was more strongly connected to Redfern and his partner and children because that’s where he chose to live and make a life. So he should be buried at La Perouse.
The answer will influence future legal decisions, in the way that legal cases usually do.
So the moral of the story is this: if you want to be buried in a particular place, put that in writing beforehand. But just as importantly, if you don’t really care where you are buried but others in your family could strongly disagree with each other, jot something down so they don’t fight over it.
Write this in your will and your advance care directive – especially in the part that discusses how you want to be managed after you die. This would usually be where you say whether you want to be buried or cremated.
Otherwise, other people will have to make a decision and this could rupture your family’s relationships with each other forever.
For more on these types of practical issues, go to: