Understanding Funeral and Burial Directions in Wills

Funeral and Burial Directions in Wills
A will often includes directions as to how the will-maker wishes to have their remains dealt with and funeral instructions. However, many people do not know that funeral and burial instructions are not binding on an executor in Victoria. The person with the right to dispose of a body, (generally an executor or administrator if there is no will) may do so in any way they wish provided it is not unlawful, unreasonable, or carried out in a way that prevents family and friends from reasonably and appropriately expressing affection for the deceased.

Executor’s Rights and Court Involvement

If a dispute arises over the disposal of a body or funeral arrangements the court will generally give the right to make decisions to an executor named in a will. If there is no will the court will give this right to the person most likely to be the administrator of the deceased person’s estate. There are exceptions to the general rule. In the case of Keller v Keller (2007) 15 VR 667, it was held that cultural and religious factors should be considered where ‘the attitude of the deceased to such issues is not substantially in dispute’. The facts in this matter were unusual in that the executor of the deceased estate was not willing to make a decision and the court had to decide a dispute between the estate's beneficiaries. One should not rely on a court to determine when drafting a will.

Organ Donation Requests in Wills

Another direction that people sometimes request be added to their will is that their organs should be donated. This presents a practical issue as by the time a will is read it is generally too late to donate the deceased person’s organs. If you wish to donate your organs you should register with the Australian Organ Donation Register and advise your loved ones of this. There is little utility in mentioning organ donation in your will.

Choosing an Executor for Funeral and Burial Wishes

If funeral and burial directions are important to you, you must choose an executor who you believe will carry out your wishes and properly describe your funeral and burial wishes. We regularly draft wills with a range of funeral and burial wishes that range in complexity depending on our client’s preferences. If you have any questions about this article or wish to prepare a will, please contact our Will Elder.
Will Elder

Will Elder


Will has been a partner at Phillips & Wilkins since 2019. He has developed a broad commercial practice in which he advises clients on business acquisition and sale, commercial agreements, commercial and retail leasing, and commercial litigation. Will is interested in commercial matters of all kinds and loves helping his clients get important deals over the line. He recognises that there is often a lot of “noise” around a legal matter and it is important to identify the key issues. Will joined Phillips & Wilkins in 2013, shortly after graduating from Monash University. While at university Will studied law in the Netherlands and also completed an honours degree in arts majoring in anthropology. Outside of work, Will plays hockey at Toorak East Malvern Hockey Club, collects vinyl records, and enjoys spending time with his friends and growing family.