Reading 3 of 3

When the funeral is needed

When someone produces evidence of a prepaid funeral contract, the ACCC says the business must honour it and must not require unexpected extra payments. Western Australia’s code adds a rule with names attached: an agreed service cannot be charged at more than the contract’s amount unless the right person agrees, and after the death of a client who was also the person the funeral was for, that person is the legal personal representative.

General information, not legal advice. The national rules are the Australian Consumer Law, explained on the ACCC’s funeral services page; the state rules here are Western Australia’s code and Consumer Affairs Victoria’s. A lawyer can advise on a particular contract or estate.

Four moments when the contract is read

A prepaid contract may wait a long time. The ACCC notes that pre-purchased funerals, cremations, burial plots and memorials may not be needed for many years, and that businesses should have systems to document, check and honour them. When the time comes, the paper is read at four points, in this order.

  1. The first call

    WA · cl. 5, 10 · NSW

    In Western Australia the contract names a person for the organiser to contact when it is told of the recipient’s death. That same person is one of those who must be given a copy of the signed contract, as soon as is reasonably practicable after signing. Where no one knows of a plan, the NSW Government’s guide puts the question first: whether the person who died had pre-arranged their funeral or bought a grave site.

  2. The arrangement meeting

    National · Vic

    This is when the contract is produced as evidence. The ACCC’s words are plain: “When a consumer provides evidence of a pre-purchase contract, the business must honour it. The business must not require the consumer to make unexpected extra payments.” Source: ACCC © Commonwealth of Australia.

    In Victoria, Consumer Affairs Victoria’s rules on pre-payments say a provider cannot ask the customer for further pre-payments, or for any other amount not set out in the contract.

  3. Any change

    WA · cl. 9

    If the family asks to add or alter something, clause 9 of the Western Australian code decides when an agreed service may cost more than the contract says. It is set out in full in the next section.

  4. The final invoice

    National

    The ACCC suggests keeping copies of contracts and invoices, and after the funeral reviewing invoices carefully and questioning anything that doesn’t look right. If there is a problem, its first step is contacting the funeral provider to explain it, as soon as possible. It also points to the state or territory body responsible for the specific funeral laws, such as pricing disclosure, if the business does not resolve it.

WA · cl. 9

The price on the day, in Western Australia

Clause 9 is headed as a prohibition on charging more for agreed services. An agreed service is a funeral service to be provided under the prepaid contract, and the organiser must not charge the client more for one than the amount the contract gives for it, unless one of three things happens:

  1. the parties to the contract agree to the greater amount;
  2. the agreed service is varied, and the parties agree to the variation;
  3. where the client is also the recipient and the change comes after the recipient has died, the recipient’s legal personal representative agrees to the higher amount or the change.

The third case applies after a death, where the person who made the contract was also the person it was for. The code defines who the legal personal representative can be:

  • the executor of the will, or the administrator of the estate, of a recipient who has died;
  • the trustee of the estate of a recipient under a legal disability;
  • a person who holds an enduring power of attorney granted by the recipient.

Clause 9 is about charging more for what the contract already covers. Something the contract never set out is not an agreed service, so clause 9 does not reach it. The previous reading, What the price covers, and what it leaves out, sets out where those lines sit.

National

Terms a court can set aside

The Australian Consumer Law protects consumers from unfair terms in contracts, and a term a court finds unfair is cancelled and cannot be enforced. The ACCC names terms in funeral contracts that may be unfair, and three of them bear on a contract paid for long in advance. They are terms that:

  • demand the full price up front in a way that makes it harder to get money back if some of the contract is never carried out;
  • let the business add charges for extra services without telling the customer or asking their permission;
  • let the business decide on its own, for any reason, to change the date or not provide the services at all.

Conduct is covered as well as wording. Businesses must not engage in unconscionable conduct, which can include acting harshly or taking advantage of the vulnerability of people arranging a funeral, and the ACCC’s examples of what they must not do include charging more than what was agreed. Source: ACCC © Commonwealth of Australia.