Many people who find themselves in the position of having to arrange a funeral or cremation are unaware of the full costs involved. Fewer still are aware that these costs can be reduced substantially by members of the deceased’s family or friends making arrangements themselves.
You might well wish to engage the services of a funeral director or a minister at such a time, but this is not required by law. Nor does the law require a formal funeral or cremation ceremony.
Of course, there is no encouragement from the funeral industry for people to make their own arrangements. This chapter explains what the law does require. In it, reference is made to the registrar of Births, Deaths and Marriages (“BDM registrar”) (see “Contacts”).
The Coroners Act 2008 (Vic) (“CA 2008”) came into force on 1 November 2009. All references in this section are to the CA 2008 unless otherwise advised.
There is a statutory requirement imposed on members of the public generally (s 12 CA2008), and on medical practitioners specifically (s 13CA 2008), to notify a coroner or the officer in charge of a police station of a reportable death where there are reasonable grounds to believe the death has not been reported (s 12 – in respect of reportable deaths; s 13(1) – in respect to reviewable deaths; ss 14, 15). Such information generally originates from the public. The Coroners Court must notify the BDM registrar of the prescribed particulars found by the coroner following an investigation of a death. It is an offence in Victoria to dispose of a body in the case of a reportable death before the coroner has examined it (see “Coronial inquests”).
There is no exhaustive statutory determination of exactly what is a “reportable death”, but section 4(2)(a)–(j) of the CA 2008 does set out categories of cause of death that do constitute a “reportable death”. These cover the cases in which a doctor could not discover the cause of death. A legally qualified medical practitioner must certify that a person is dead. A person who has reasonable grounds to believe a reportable death has not been notified must do so as soon as possible (s 12). A member of the immediate family of a deceased where the death occurs within three months of discharge from an approved mental health service may report the death to the coroner (s 12(2)).
The CA 2008 came into force on 1 November 2009. The definition of the categories of a reportable death appear in section 4(2)(a)–(j) of the CA 2008, and include the deaths of persons while in custody (s 4(2)(c)), or patients within the meaning of the Mental Health Act 1986 (Vic) (s 4(2(d)), or those who die during or as a consequence of a medical procedure as defined by the Act.
Where a registered medical practitioner is present at or after a death of a person, the medical practitioner must report the case to the coroner without delay (s 10(1) CA 2008).
It is normal practice for the BDM registrar to report to the coroner any reportable deaths that had not been investigated.
In the case of a reportable death, the body will be transferred to the Coroners Court by a funeral director who operates on a contract from the state government. No payment is required from the next of kin for this service and it is not necessary for the funeral director who transferred the body to the court to arrange the funeral.
The coroner has jurisdiction to hold an inquest about any fire or reportable death as defined by the CA 2008. The coroner must investigate a reportable death provided the death is a reportable death and took place in Victoria and occurred within 50 years of the death being reported (s 14). The coroner may investigate a death within 100 years of being notified of the death (s 15). The coroner does not have to hold an inquest where the death is not a reportable death (as referred to in section 4(2)(b), (b)), or where a medical investigator examines the body and is of the opinion that the death was caused by natural causes (s 17).
If any person buries, cremates or otherwise disposes of the body of any person who died in such circumstances before the coroner has had an opportunity of viewing the body, that person is guilty of an offence.
The CA 2008 gives the coroner wide powers regarding investigation of a death or the holding of an inquest (ss 14, 15). A coroner is not required to continue an investigation into a reportable death if a medical investigator provides an opinion that the death was due to natural causes despite the fact that the person died unexpectedly. A coroner is bound to order an autopsy if the they believe that the autopsy is necessary for the investigation of the death and it is appropriate to give the direction. Alternatively, the coroner may not require an autopsy to determine the cause of death, instead relying on other sources of information available. Under section 27, any person may ask the coroner to direct that an autopsy be held.
From 1 November 2009, the senior next of kin (as defined in the CA 2008) must be provided with any reports given to the coroner (s 115(1)(a)). Interested parties given leave to appear at the inquest, if one is held, must be provided with a copy of the inquest brief (s 56). However, this right does not extend to general documents held by the coroner (s 115(6)).
The CA 2008 provides that a coroner may provide a body to a medical investigator to enable a preliminary examination to be performed on a body, which consists of various non-invasive tests, such as taking and testing samples, X-rays, or similar imaging tests. Accordingly, a preliminary examination may provide sufficient information to establish the cause of death, without requiring the need for an autopsy. If an autopsy is ordered the coroner must take reasonable steps to notify the senor next of kin (s 26(1)) (as defined in the CA 2008).
Such an autopsy can only be ordered where the coroner believes it is necessary for the investigation of the death and it is appropriate to give such a direction (s 25(2)). Within 48 hours of receipt of notice from the coroner, the senior next of kin may ask the coroner to reconsider the decision (s 26(2)). The senior next of kin must be notified of the result of the coroner’s reconsideration. The autopsy still cannot take place until 48 hours have elapsed from the time the senior next of kin is notified of the result of the coroners’ reconsideration, so that the senior next of kin may apply to the Supreme Court to have the decision overturned (s 26(2), (3)) if they wish to take that step.
The coroner has the power to make recommendations to any minister, public statutory authority or entity regarding any matter where a death or fire has been investigated (s 72). The public statutory authority or entity receiving the recommendations is obliged to respond within three months (s 72(3)). Unless otherwise ordered by a coroner, a coroner’s findings, comments and recommendations made following an inquest must now be published on the internet (s 73).
Under the Births, Deaths and Marriages Registration Act 1996 (Vic) (“BDMR Act”), when a person dies in Victoria, their death must be registered in Victoria. When a person dies outside of Victoria, but leaves assets in Victoria, their death may be registered in Victoria.
A doctor who attended a person during their last illness, or who examined the body after death, must sign and send to the BDM registrar a notification of death, as prescribed by section 37(1) of the BDMR Act, within 48 hours of the death.
This notification must be supplemented by a completed form given to the BDM registrar within seven days of the disposal of the body by the funeral director or person having custody of the body (s 39).
The name and address of the medical practitioner who certified the death can be found in the schedule 5 form (under the Births, Deaths and Marriages Registration Regulations 1997 (Vic)) entitled Notice of Signing Medical Certificate Concerning Death. A copy of this form must be delivered or sent to one of the persons required to notify the BDM registrar within 48 hours of the death. This notice, however, shall not be issued if the doctor is required to report the death to a coroner or a police officer (s 37(4) BDMR Act).
Where a death occurs in hospital, these legal requirements will be seen to by the medical staff. If the death occurs in a private house, by the funeral director. If, however, the services of a funeral director have not been obtained and the death occurred in a private house, notification must be forwarded to the BDM registrar in the prescribed form, which can be obtained, free of charge, from the office of the BDM registrar.
Once the cause of death has been ascertained – either by a medical practitioner or by the coroner at the Coroners Court where reportable death cases are taken – the body may be taken for burial or cremation. In practice this almost always means that the body is conveyed to the undertaker.
If the body is with the coroner, an application must be made to the coroner to release the body (s 48 CA 2008). Under the CA 2008 (s 48), the coroner can decide who the body is released to, having considered that factors set out in the CA 2008 (s 48). This decision can be appealed in the Supreme Court.
At this stage several choices must be made. First, the choice of funeral director must be decided upon. The service charge varies between directors and consequently “shopping around” can make savings. The service charge can be quoted to include the coffin or casket (unit pricing) or separately from the price of the coffin or casket (functional pricing).
The service charge covers such things as the use of a hearse, the transportation and disposal of remains, making arrangements with the cemetery or crematorium, and the taking care of legal requirements. It may also provide for costly but unnecessary extras, such as the use of a funeral parlour chapel, mourning coach, press notices and embalming.
The price of the funeral will vary greatly, depending not only on the choice of funeral directors, but also on the choice of burial or cremation (of course, the wishes of the deceased should be followed in the making of this choice, which in some instances may preclude a cremation, see “Cremation”), the choice of cemetery, and the number of extra services supplied by the funeral director. The law does not require a minister or formal ceremony, embalming, the placement of a notice in the press (see “Death notices”), or the delivery of the coffin to the cemetery or crematorium in a hearse. Decorum, however, will be required by the trustees; therefore, if private transport of the coffin is organised it should be undertaken in a covered vehicle (e.g. panel van) with curtains on the windows.
If there is a will that names an executor then they have custody of the body and ultimate control of its disposal (but see “Cremation” and “Donation of body for anatomical research”). If there is no executor or interested relative, then a friend can organise the funeral without necessarily becoming obliged to administer the dead person’s affairs. The next of kin are not obliged to arrange a funeral. Whoever authorises the funeral director may be personally liable to meet the costs of the funeral unless it is clear the estate is liable to pay the account.