Where a trust has only issued one right of interment for a double grave that has two separate places of interment side by side, the trust will be unable to use the provisions in s. 91 of the Cemeteries and Crematoria Act 2003 to cancel a right of interment if one of the places of interment has been used.
In this case, the original right of interment was exercised when the first interment took place in the double grave, and it is not possible to use s. 91 to cancel a right of interment that has already been exercised.
Right of interment – updating a trust's records
Before a trust can reclaim an unused place of interment in a double grave (side by side only), it will need to update its records and issue a new right of interment for the unused place of interment.
Note that, where a trust in the past has allowed the construction of a double monument on a double grave, it will be unable to use the process to reclaim the unused place of interment.
To update its records, the trust should place an advertisement in local papers requesting members of the public to notify the trust if they believe they have a claim to the unused place of interment within the cemetery. The trust should ensure the ad provides as much information about the original right of interment as practicable. For example, the notice should include:
- the trust's purpose for placing the ad – for example, 'The XYZ trust is seeking to update its records in relation to unused places of interment in double graves in the XYZ cemetery...'
- the family name of the holder of the right of interment for the double grave, the date the grave was purchased and the date the original right was exercised
- the time period for responding to the ad (it is recommended that 45 days be set aside to allow members of the community to respond)
- the trust's contact details.
The trust may need to place multiple advertisements during this time to ensure it can obtain as much information as possible to update its records.
Unused place of interment – receiving a claim
The trust should evaluate any claims made and, where a person can demonstrate to the trust's satisfaction that they have a valid claim to an unused place of interment, the trust should issue a new right of interment for that unused place of interment to the claimant.
If a person can demonstrate that they have a legitimate claim on the unused place of interment, the trust should also ensure it updates its records to reflect this person’s rights in relation to the exercised place of interment.
Where practicable, a new right of interment should be reissued on the same terms and conditions and issue date of the original.
Once a new right of interment has been issued, the trust should ensure its records are updated. The holder of this 'new' right of interment has the same rights and obligations as any other right of interment holder over that place of interment.
Unused right of interment – no claim is made
The trust can:
- amend its records and issue a separate right of interment for the unused place of interment to the original owner of the right
- determine if it is going to cancel the right in accordance with s. 91 of the Act.
Right of interment – cancelling
Once the trust's records have been updated and, if the trust determines that it will cancel the reissued right of interment, it can follow the normal process for cancelling a right set out under s. 91 of the Act.
Section 91 of the Act requires the trust to advertise its intention to cancel the right of interment prior to the actual right being cancelled.
The process for cancelling a right of interment is set out in Topic 24 of the Manual for Victorian Class A cemetery trusts and topic 22 of the Manual for Victorian Class B cemetery trusts.
Once a right of interment has been cancelled in accordance with the Act, the trust is able to make the unused place of interment available for purchase. Please note, however, that if, at any time the former holder of the right of interment approaches the trust to use the grave and exercise the right of interment after it has been cancelled, the trust must either provide them with either a full refund of the current market value of the right of interment or offer them an alternative comparable right of interment at no cost.