Decisions about ashes, memorialisation, additional interments, and disinterment
18.49Responses to our Local Authority Survey reported a growing trend of families opting to bury a deceased family member or inter their ashes in an existing family grave, a trend that seems to be partly driven by burial costs, but also by the location and ambiance of a particular cemetery or because of family connections. Requests to inter ashes in existing graves are particularly common in older cemeteries that no longer have capacity for new burials. However, requests for additional interments involving burial can put cemetery managers in the difficult position of determining who has the authority over the plot to give consent.
18.50For closed cemeteries and burial grounds, the Burial and Cremation Act expressly provides that certain close relatives may be buried in the same plot as the deceased, although it does not rank the priority of the relatives if there is a dispute over who should be buried. But in other cemeteries, the authorisation of appropriate family members for an additional interment is required. If there is a surviving spouse, children or executor of a person already buried in the plot, it may be appropriate for them to make this decision. Alternatively, there may be clear plot-holder rights established through a contract for a “right of interment”. However, in many cases the immediate kin may themselves be deceased, the executor may be unknown (if one has been appointed), or it may be unclear who the appropriate decision maker is because of the time elapsed.
18.51Cemetery managers can face the challenge of determining when approval of such requests should be sought and who should provide it, when there is no directive in the original deed and when the executor of the deceased’s estate may be either unknown or no longer alive. The problem is most acute when family members object to the new interment, as outlined by the Buller District Council in its response to our Local Authority Survey:
Generally they are disputes between family members when one member wishes to add either ashes or a body to what is a family plot which usually contains elderly parents or grandparents and other members of the family object to the addition of the particular person. The difficulty is as time goes on who actually has the right to say who can, or cannot, be added to a plot?
18.52Additional interments may also necessitate the removal and reburial of remains at a greater depth, if the plot was not originally established as a double-depth plot. Under current law, this requires a disinterment licence, a process we outline below. This process provides some level of additional oversight, although family members may also disagree on whether to disinter, and resolving these disagreements can be challenging.
18.53We suggest in chapter 7 that clearer statutory defaults could provide greater certainty about the nature of these rights, and help prevent disputes arising. These would not be compulsory, and it would be possible to opt out on a case-by-case basis, for example through the agreement for plot purchase or through a will.
18.54Statutory defaults could provide greater certainty about who is entitled to exercise plot-holder rights once the first deceased family member has been buried. For example, the statute could provide that the spouse of the deceased would hold the first right to a subsequent burial in a double-depth plot, then the children of deceased, and so on. The statute could also clarify whether an individual has the right to consent to an additional interment, or whether consensus between close surviving relatives is required. The exact detail of statutory defaults would be informed by consultation on this Issues Paper, and we suggest that they should be broadly consistent with whatever framework is favoured for burial decision-making rights as discussed in chapter 16.
18.55A second option (as an alternative or in addition to statutory defaults) would be to develop a model contract for plot purchase, also suggested as an option for reform in chapter 7. A model contract could perhaps contain more detail than the statutory defaults.
18.56A third approach is for statute to specify the matters that must be addressed in a plot purchase contract. For example, the new burial legislation in South Australia requires the plot contract to include details of the people that are eligible to be interred in the plot or the person or specified class of people that are entitled at some future time to nominate who may be interred in the plot.
18.57We invite submissions to these questions in chapter 7.