Updated 22 October 2026
Administration of Estates - Potential Problem #25: Unusual Burial Location
Burial wishes can reflect a person’s connection to their home, family or Country. When the preferred location is private land, however, an executor must consider approvals, ownership and the people left responsible for the grave. A carefully drafted will helps explain those wishes, but it does not itself authorise a burial.
In NSW, planning ahead means addressing both the personal wishes and the legal requirements. That is particularly important where cultural practices, family relationships or the future sale of the property could affect the arrangements.
1. Who decides where someone is buried
The executor named in a valid will generally has responsibility for arranging the funeral and burial. If there is no will, the person entitled to administer the estate will usually have that responsibility. Disputes can require urgent legal advice.
Legal Aid NSW’s funeral guidance explains that funeral wishes in a will are generally not legally binding. A written direction against cremation is an important exception. Choosing an executor who understands and respects your wishes therefore matters.
Tell that person where the will and funeral instructions are kept. Discuss the arrangements while you can answer questions, because the funeral may be organised before anyone reads the will.
2. Can you be buried on your own property
Under NSW Health’s private-land burial guidance, the ordinary route for burial outside a cemetery requires a landholding of at least five hectares and approval of the location by the local council. Owning the land does not remove these requirements.
Burial must not be likely to contaminate drinking or domestic water supplies. Council considers planning and site conditions. A geotechnical investigation may be needed; an environmental impact statement is not automatically required for every application.
The ordinary minimum depth is 900 millimetres between the top of the coffin and the natural ground surface for private-land burial. A different depth requires the relevant approval.
Begin these enquiries during estate planning. Naming a paddock or favourite tree in a will cannot resolve an unsuitable site or replace an approval.
3. Recording Indigenous customary burial wishes
A will can be tailored to record wishes about burial on Country, cultural ceremonies and the people the executor should consult. NSW Government guidance on wills for Aboriginal peoples recognises the importance of documenting kinship, burial and culturally significant knowledge.
The instructions should identify the preferred location, relevant family members or community representatives, and any alternative the person would accept. They can also address preferences about the use of their name or image after death. Discuss these matters privately and record only what the person wants shared.
Aboriginal and Torres Strait Islander practices vary between communities and individuals. The official cultural and spiritual burial guidelines emphasise this diversity. Customary wishes should inform the planning, with the necessary health, landowner and council permissions addressed separately.
If a person wishes to be buried without a coffin, NSW Health guidance explains the approval process. The local Public Health Unit can advise whether an existing general approval applies or an individual application is needed.
4. Christine on listening before drafting
As an Indigenous woman and a solicitor, I understand that a discussion about burial can reach well beyond the wording of a will. Country, family connections and cultural responsibilities may all matter. I would start by asking, “Where do you want to be, and who do you want involved?”
I would also ask what should happen if the first choice cannot be approved. That can be a difficult conversation, but it gives the executor something useful to work with. A clause saying “follow my customs” may leave relatives with very different ideas about what that means.
For me, the aim is to record the person’s own wishes clearly, choose someone they trust to carry them out, and check the practical arrangements early.
5. A real NSW case about burial and Country
In Darcy v Duckett [2016] NSWSC 1756, an Aboriginal man’s sister and de facto partner disagreed about his burial after he died without a will. His sister wanted him buried at Gulargambone on Weilwan Country. His partner wanted burial at Bowraville on Gumbaynggirr Country, where he had made his home with her and their children.
The NSW Supreme Court gave the partner authority to arrange burial at Bowraville. It considered the practical circumstances, cultural evidence and the deceased’s expressed wishes, alongside the applicable common-law principles. The judgment also encouraged respect for his birth family’s views and relevant Weilwan funeral practices.
The case shows why identifying personal wishes and cultural connections can help resolve a dispute. It did not establish that one relative always takes priority, or authorise private-land burials without the necessary approvals.
6. Consider the land beyond the funeral
A grave needs a plan for future care and access. Discuss with council and your solicitor how relatives could visit if the property is sold, whether an easement or other arrangement is needed, and how the site will be protected from disturbance. Surveying, marking and council records can also matter.
Check who actually owns the proposed burial site. A deceased person’s wishes cannot simply bind another landowner. If several people will inherit the property, discuss responsibility for maintenance before they find themselves disagreeing about access or future development.
Do not assume burial necessarily reduces the property’s value. Any effect depends on the land, approvals and arrangements; obtain property-specific advice.
7. Plan the work and its cost
Private-land burial may involve funeral services, council applications, site investigations and surveying. Obtain itemised quotes for the actual proposal. These are separate from the cost of preparing a will, and there is no single standard package covering every property and cultural arrangement.
A straightforward single will starts from $440 including GST. We confirm your fee in writing before we start. Ask whether tailored cultural instructions require additional drafting. Private-land approvals, complex estate planning and contested burial proceedings require separate assessment and pricing.
8. Steps to reduce the risk of a family dispute
Step 1 — Record the wishes. Identify the preferred burial location, cultural practices, people to consult and an acceptable alternative. Keep the instructions accessible.
Step 2 — Choose the executor carefully. Discuss the role and explain why the arrangements matter. Resolve unclear instructions while the will-maker can still clarify them.
Step 3 — Check feasibility. Contact council, confirm ownership and speak to a funeral director. Check any additional health approvals before committing to the site.
Step 4 — Plan funding and future care. Obtain quotes, document access arrangements and identify who will maintain the grave.
Step 5 — Act promptly if disagreement arises. Seek advice before irreversible arrangements are made. Mediation may help; urgent Supreme Court proceedings may be necessary where agreement cannot be reached.
Cemeteries and Crematoria NSW’s 2024–25 activity report, Table 1 on printed page 2, records 18,087 burials and 46,722 cremations reported by operators. These figures provide statewide context; they do not measure private-land burials or Indigenous cultural preferences.
CM Lawyers can help you record funeral wishes through wills and estate planning, or advise on an emerging estate dispute. Contact our team to discuss your preferred arrangements and what needs to be checked.
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