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The owner can transfer the Right to another party during his lifetime by means of a Deed of Assignment for a consideration or as a gift.
On the death of the owner, the rules of inheritance prevail as modified by the Administration of Estates Act 1925, which gave equal rights to all children of a marriage.
If the deceased has left a Will and the estate is of a value which makes it worth obtaining Probate, the Probate of the Will needs to be produced to the Burial Authority to affect a transfer. If the Exclusive Right of Burial and Memorialisation has not been mentioned in the Will, and it seldom is, the ownership would devolve upon the residual legatee(s). If the Will is not proven then a declaration would be required.
If the deceased died intestate and the estate merited the obtaining of Letters of Administration, these would need to be presented to the Burial Authority in order to establish the new ownership.
Where the estate does not require Letters of Administration it will be necessary to obtain a Statutory Declaration. The Declaration would be made before a Justice of the Peace or a Commissioner for Oaths by the person desiring to establish the new ownership. It will state the exact position regarding the original acquisition of the Right and the subsequent death and estate of the deceased owner and ascertain the new legal grave owner.
The Declaration will also include an indemnification clause indemnifying the Burial Authority in the case of any action challenging the new registration.
Upon receipt of the completed Declaration the Burial Authority would transfer the Exclusive Right of Burial and Memorialisation to the new owner(s) and retain the Declaration on a special transfer file.
Once the new ownership has been established it would be in order for the new owner to assign the Right to whomsoever he or she may wish
Another prevalent misconception is that the Burial Authority may open a grave without the owner(s) permission or upon receiving an indemnity from a third party. This is not so.
One cannot be indemnified for committing an illegal act and the Burial Authority, as the custodian of the Cemetery, would be culpable if it allowed any person to use a grave in its Cemetery where it was known that there was a legal owner. The indemnity would be no legal defence.
It is not compulsory for there to be a legal grave owner(s) of an existing grave space and a transfer of the Exclusive Right of Burial and Memorialisation does not have to take place if there is no one willing to take over the remaining lease of the grave.
Another misconception is that without a legal grave owner the grave will still be used for interments if there is space within it. This again is not so. The grave will not be re-opened for further burials and the Burial Authority will continue to maintain the grave area.
However, if there is no legal grave owner then a memorial headstone cannot be erected on the grave space and further interments within the grave cannot take place. If a memorial stone has been removed in order for a burial to take place then the stone cannot go back onto the plot unless a transfer of ownership is completed. Without a legal grave owner only a memorial vase is permitted on the grave space.
There is a fee applicable for the Transference of the Exclusive Right of Burial and Memorialisation and the production of a new Grant of Deed for the grave space. Current prices are available from the Cemetery Office.