Family matters sometimes arise over the funeral arrangements for a family member. Such matters may be:
• Between the next of kin and immediate family on the one hand and a member or members of the extended family on the other.
• Between family members of different cultural or religious backgrounds.
However, such matters can range from issues of location of the funeral, the duration of the funeral service, choices of traditions either traditional or religious, the cremation and so on. In some cases they will be resolved relatively easily, in others they may lead to a breakdown in communication and unilateral decisions and actions.
These matters or disputes are themselves part of the grieving process, and they inevitably take place in situations that are highly emotionally charged.
However, such matters may arise at the undermentioned areas:
1. AT THE TIME OF DEATH
In all cases the first step is the determination of the cause of death and a medical certificate to that effect. For expected deaths, this will require a doctor, but in the case of unexpected deaths police and coroner involvement will also be required. The next of kin will need to be determined.
2. DECISION ON FUNERAL ARRANGEMENTS
The next of kin or their representative contacts Melbourne funeral directors and enters into an arrangement for taking charge of the deceased. Basically a formal or informal contract is entered into between the next of kin and the funeral director, including an “order for burial”. There is no legislation relating to funerals.
3. INITIATION OF ARRANGEMENTS
The funeral director takes charge of the deceased on behalf of the next of kin. Funeral arrangements may involve a service or commemoration, in a home, religious setting, or in a funeral home chapel.
4. CHALLENGE TO ARRANGEMENTS
When arrangements become known, other family members may challenge the decisions, either directly to the next of kin or to the funeral director. The reasons may be that other relatives have been estranged from the immediate family, feel excluded, or have strong convictions deriving from their culture or belief.
5. RESOLUTION OF FUNERAL MATTERS
Most disputes are resolved without assistance or through informal mediation by a senior family member, a Minister of religion, the funeral director or other community figure. However, the Police have no powers to enforce a resolution, but have considerable experience in dealing with such issues.
6. FAILURE TO RESOLVE MATTERS
Where the dispute is not resolved informally, and communication has broken down, the only other recourse is to the High Court. This may be necessary on the rare occasions when those challenging the funeral arrangements take the matter into their own hands and remove the deceased for funeral and burial elsewhere.
The law does not give the Police specific powers in this situation, for example to prevent the removal of the deceased, or to take possession of the deceased, since no-one legally “owns” a deceased person. The High Court can grant an injunction to enforce a will, where one exists, to recognize the authority of an executor or an administrator, or to order an exhumation if the deceased has been buried elsewhere.
Even if such an injunction is granted, there is likely to be a need for further mediation by the Police or other parties to achieve a resolution. This may seem unsatisfactory to those immediately affected, but in the long term it may help to ensure that the dispute is resolved and hopefully that all those who have a relationship with the deceased are able to affirm that in their bereavement.