Updated October 2026
Wills - Potential Problem #11: Overlooking Funeral Wishes
Including funeral wishes in your will can help your family make difficult decisions after your death. Clear preferences about burial, cremation, religious observances and the type of farewell can reduce uncertainty at a time when relatives may remember your wishes differently.
In NSW, however, most funeral instructions are not legally binding. A useful plan combines a properly prepared will, an accessible record of your preferences and a conversation with the person likely to arrange the funeral. Recording wishes matters; making sure they can be found promptly matters just as much.
1. Are funeral wishes in a will legally binding?
Legal Aid NSW’s funeral guidance explains that funeral directions generally guide the executor rather than bind them. The executor should consider the deceased’s preferences, alongside practical arrangements and available funds.
An important exception is a written direction against cremation, which must be respected. Do not assume that every instruction is optional simply because most preferences are not enforceable. Ask your solicitor to record any firm objection clearly and ensure the funeral provider receives it.
A wish also cannot authorise an otherwise unlawful arrangement. Requests involving private-land burial, overseas transport or a particular burial method require separate checks. The wording in a will does not replace the relevant permissions.
2. Who makes the funeral arrangements?
The executor normally has responsibility for arranging the funeral. If there is no will, responsibility generally follows entitlement to administer the estate. A dispute about that responsibility may require legal advice.
The NSW Government’s executor guide explains that the executor’s role begins when the person dies. Funeral arrangements usually need to be made before probate is granted, so families should not assume they must wait for the entire estate process.
A power of attorney ends on death. Someone who managed the deceased’s finances during life does not acquire funeral authority solely through that appointment. Choosing an executor who understands your preferences helps avoid confusion between these roles.
3. Keep an accessible record outside the will
The NSW Government’s funeral-wishes guidance recommends communicating preferences separately because a will may not be read or found until after the funeral.
Give your executor and a trusted family member a dated copy of your funeral wishes. Explain where the original will is stored and whom to contact. Include the details of any prepaid arrangement, cemetery reservation and funeral provider.
Keep the separate record consistent with your will. When your preferences change, obtain advice about updating the relevant documents and replace outdated copies. A family should not have to choose between conflicting instructions written years apart.
Avoid relying only on expressions such as “keep it simple” or “you know what I want”. For one relative, that may mean a small church service; for another, no service at all. Recording a few concrete preferences gives your family something clearer to work with.
4. What should your funeral wishes cover?
Start with the decisions that matter most: burial or cremation, the preferred location, religious or cultural practices and whether you want a funeral service. Services Australia’s planning guidance confirms that a funeral service is optional, although lawful arrangements for the body are still necessary.
You can also record preferred readings, music, speakers, flowers or charitable donations. Explain which details are especially important and where you are comfortable allowing flexibility. A preferred venue may be unavailable, or a particular arrangement may exceed the available budget.
If you want an existing family grave used, check the records with the cemetery. An interment right permits interment at a particular location; it is not ownership of the land. Availability and the cemetery’s requirements still need confirmation.
For cremation, discuss who should receive the ashes and the intended destination. Permission may be needed to scatter ashes on private or public land.
5. A real NSW case about disputed funeral arrangements
In Morgan v Morgan (2026), a daughter asked the NSW Supreme Court to authorise her father’s cremation. He had told his son and sister that he wanted cremation. His wife opposed proceeding because she wanted further investigation into his death, although the State Coroner had declined to investigate.
By the hearing, more than a year had passed since his death. The Court considered his expressed wishes, the family’s circumstances and the practical difficulties of continuing to store his body. It authorised the daughter to arrange cremation and appointed her administrator for limited purposes, including obtaining a death certificate and cremation permit.
The Court did not decide whether a disputed document found on his iPhone was a valid will. The case shows that funeral arrangements may need resolution separately from inheritance disputes. Written wishes can help establish preferences, but cannot guarantee that disagreements will never arise.
6. Plan for payment as well as preferences
ASIC MoneySmart’s funeral guide, updated in September 2026, gives a general cost range of A$8,000 to around A$20,000, depending on the funeral chosen. This is a guide, not a minimum price or a quotation for your circumstances.
Ask for an itemised quote identifying the services, cemetery or crematorium charges and optional extras. NSW Fair Trading’s funeral guide explains the importance of comparing prices and understanding the contract before committing.
The person arranging the funeral is usually legally responsible for the account. Legal Aid NSW’s payment guidance explains that funeral expenses can be paid from an estate with sufficient funds. A bank may release money from the deceased’s account after receiving the documents it requires.
Do not assume every extravagant expense will automatically be reimbursed. Identify funding and check existing arrangements before signing a new contract.
The Cemeteries and Crematoria NSW Activity Report 2024–25, published in February 2026, records a cremation rate of 72.1% across reported burials and cremations. Six operators had not submitted activity reports by the reporting cut-off.
These figures describe services provided, not the frequency of funeral disputes or the preferences of any individual. Families should ask about a person’s wishes rather than infer them from general trends or assume everyone shares the same beliefs.
8. Five practical steps to reduce uncertainty
Step 1 — Choose your executor carefully. Discuss whether they are willing and able to take on the role, including any sensitive family or cultural issues.
Step 2 — Write down your preferences. Give clear instructions about what matters most, and identify an acceptable alternative where practical arrangements may change.
Step 3 — Check feasibility and funding. Speak with the intended provider or cemetery and keep the relevant contracts, contact details and payment records together.
Step 4 — Share the current version. Tell your executor and trusted relatives where the will and separate wishes can be found. Explain any important changes directly.
Step 5 — Act promptly if disagreement arises. Obtain advice before competing arrangements become irreversible. Mediation may help; urgent Supreme Court orders may be needed when agreement cannot be reached.
9. How much does a will cost?
CM Lawyers’ single-will starting fee is $440 including GST. A written quote confirms scope. Complex estate planning, administration and funeral disputes require separate assessment and pricing.
Contact CM Lawyers for help with wills and estate planning or estate administration. We can help you record funeral wishes clearly and understand how they fit with your executor’s responsibilities.
