Right of interment

What is a right of interment?

A right of interment relates to a specific place of interment within a public cemetery, for example a plot, grave, crypt or cremation niche.

There is a common misconception that the purchaser of a right of interment actually buys the land associated with a cemetery plot, grave, crypt or cremation niche when a right of interment is purchased. This assumption is not correct as all public cemeteries in Victoria are situated on Crown land.

What is actually purchased is the right to determine who can be interred in that grave (or other type of place of interment) and the type of memorialisation (if any) to be established at the place of interment (subject to any cemetery trust memorialisation policies or specifications).

Who is the holder of the right of interment?

When a right of interment is purchased, the cemetery trust records who holds the right of interment. The holder of the right of interment is the purchaser or a person/s nominated by the purchaser. It is possible for more than one person to be the holder of a single right of interment.

At the time of purchase, the holder of the right of interment is issued with a document (for example a right of interment permit) which identifies the location of the place of interment within the cemetery. Cemetery trusts are also expected to provide documentation that explains any relevant conditions relating to exercising that right of interment.

Where a joint holder of a right of interment is deceased, the right of interment will likely be transferred to the surviving holder(s) of the right of interment in accordance with the right of survivorship.

When a sole holder of a right of interment dies, the right of interment will likely be transferred to the beneficiary of a will, or if no such arrangements have been made, the right of interment is transferred in accordance with the rules of intestacy. This could mean transfer to one or multiple people.

In the case of transfer to multiple people or intergenerational inheritance, the right to use a place of interment becomes very complicated and unclear. Accordingly, sole holders of a right of interment wanting to be interred in that place of interment should consider arranging for the right to be transferred to the person they wish to manage the right, or name the inheritor of the right in their will.

The rights and obligations of the holder of the right of interment

The Cemeteries and Crematoria Act 2003 gives the holder of the right of interment:

• the right to authorise the interment of human remains in the place of interment
• the right to decide if a monument or memorial may be erected on the site
• the obligation to maintain the monument if any is erected on the site
• the right to object to or endorse an application to exhume remains from the site
• the right to transfer or bequeath the right of interment to another party.

One of the key obligations of the holder of the right of interment is to promptly advise the trust of any change to their contact details or of the transfer of the right of interment to another party, so that the trust can maintain accurate and up-to-date records.

Length of a right of interment

A right of interment for a place of interment that can accommodate both bodily remains and cremated remains (for example, graves, vaults and mausoleum crypts) must be perpetual (forever).

A right of interment for a place of interment that can only accommodate cremated remains (such as a niche wall or rose garden) can be either perpetual (forever) or limited to 25 years (limited tenure).

The length of the right of interment is specified at the time of purchase.

Limited tenure rights of interment

The holder of a limited tenure right of interment may at any time during the 25 year period request the cemetery trust extend the right of interment for a further 25 years or convert it to a perpetual right of interment, subject to payment of the relevant fee.

At least 12 months before a limited tenure right of interment is due to expire, the cemetery trust must take reasonable steps to notify (in writing) the holder of the right of interment that:

• the right of interment is due to expire
• the holder may request the cemetery trust extend the right of interment for a further 25 years (subject to payment of the relevant fee)
• the holder may request the cemetery trust convert the right of interment to a perpetual right of interment (subject to payment of the relevant fee).

If the holder of the limited tenure right of interment does not take action in response to the notice within the time specified by the cemetery trust and the remains are not those of an identified veteran, the trust may disinter the cremated remains, dispose of the remains within the cemetery grounds and remove any memorial relating to the remains.

The Cemeteries and Crematoria Act was amended in 2015 to recognise the contribution of veterans and to reflect community expectations for managing veterans' cremated remains. The amendment is intended to ensure that identified Veterans' cremated remains are not scattered upon expiry of a limited tenure interment, but rather are preserved in perpetuity.

The amended Act provides trusts with a range of options to help manage identified veterans' cremated remains. See Veterans' cremated remains for more information.

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