Coffin confessions and contract: Why agreements to divulge secrets post-mortem might be unenforceable

Abstract

Death and taxes are not only life’s two guarantees but also lucrative industries. The former has historically been dominated by morticians and funeral directors but now ‘coffin confessors’ have entered the market. These professionals are engaged to divulge specified information at the client’s funerary service, normally in an abrasive or humorous manner, for a fee. This article queries whether contracts for such services are unenforceable on the basis of illegality or public policy. It surmises that the only way ‘coffin confessions’ contracts could seemingly be enforceable is if they are performed in a manner that is likely contrary to the client’s instructions.

In an increasingly competitive market, many are turning to self-employment as a means of earning income. ¹ Some are even pioneering new industries, hoping to exploit gaps in consumer offerings. One of the more novel examples of such entrepreneurship in recent times is the service of ‘coffin confessions’. This unique service involves an individual (‘the confessor’) being paid by another individual (‘the client’) to attend the client’s funeral or graveside when they pass away, and to reveal specified secrets to friends and family in attendance. A Queensland man, Bill Edgar, made headlines in 2020 for having launched what appears to be the first such coffin confessions service in Australia and the world. ² For a fee of up to $10,000, Edgar attends and interrupts the deceased’s funerary service and discloses the specified information in a predetermined manner, often abrasive or humorous. While this may be a lucrative and creative enterprise, it may, in some circumstances, be illegitimate under contract law. This article explains how contract law, specifically principles pertaining to illegality and public policy, might operate to invalidate agreements to spill secrets from beyond the grave if formally challenged.

Analysing the ‘coffin confessions contract’

Edgar’s business model is quite simple: clients, most of whom are generally ‘knocking on death’s door’, ³ engage him to perform a confession for them at specified time and place following their death (normally at their funerary service). After he and the client agree that he will fulfill their wishes when they pass away, the client pays him his retainer and specifies in detail what news they would like revealed, along with how and where they would like this to be done. The most commonly requested news for disclosure relates to infidelity, along with revelations of ‘true loves’, hidden wealth and even commercial misbehaviour. ⁴ Other such professional confessors will likely operate in the same manner.

The transaction is therefore simple enough – service for a fee – but the service is notably unorthodox, perhaps even macabre. In the case of Bill Edgar, he has been required to do all manner of unusual things at funerals and gravesites, including interrupting a deceased’s best friend’s eulogy and declaring that the deceased knew of the friend’s affair with the deceased’s wife, asking specific attendees at a funeral to leave, ordering a priest to sit down and stop speaking given the deceased did not desire a religious service, and revealing to mourners at a bikie’s funeral that the bikie was homosexual and that his lover was among those gathered to grieve. ⁵ He has even been asked to carry out ancillary tasks, such as attending the deceased’s home and destroying or otherwise disposing of specified items, such as pornographic materials, sex toys, guns, drugs, and money. ⁶ He once even had to dismantle a ‘sex dungeon’ in an 88-year-old’s home so that his children did not see it. ⁷

How would a coffin confessor protect themselves through their contract? In Edgar’s case, he has the client record their confession to verify his authority to speak on their behalf and performed the specified tasks. He also provides them with a ‘disclosure statement’, essentially outlining the key conditions governing the service. ⁸ This document is signed and placed on the deceased’s coffin when the confessor leaves. ⁹ Since his first funeral crash in 2018, Edgar has attended more than 60 funerals. ¹⁰ But would a confessor such as Edgar be insulated by the legal measures they have put in place? Could the contract protect them?

What makes a valid service contract?

For a coffin confessions contract to be valid, it must possess the elements that constitute a valid contract under Australian law. The elements are well settled. ¹¹ First, there must be a clear agreement: an offer on specific terms which is accepted. ¹² This will not be a problem where the confessor and the client agree that the former will divulge the latter’s secrets post-mortem. The client need only communicate their acceptance of terms to the confessor. ¹³ This must occur within the time specified by the confessor or otherwise within a reasonable time. ¹⁴ At this point, there is a ‘meeting of the minds’ (consensus ad idem). Second, you must also establish that the parties intended for their agreement to be legally binding. Commercial or business transactions are presumed to carry legal intent. ¹⁵ It is exceptionally difficult to rebut this presumption. ¹⁶ Given the confessor will generally be dealing with parties at arm’s length, proving legal intent will be simple. Third, the terms of the agreement need to be sufficiently certain. The courts are not pedantic when interpreting contracts and do not expect perfection; they will generally do all possible to attribute meaning to the terms utilised by the parties unless it is impossible to do so. ¹⁷ The terms of a coffin confessions contract are likely to be straightforward, with the client setting out what they want done and when after their passing, and the confessor reciprocally quoting a price and other conditions.

Finally, you must prove that the parties formed a bargain through the exchange of legally sufficient consideration. This means the parties must provide one another with something of legal value – there must be quid pro quo. ¹⁸ That ‘something’ could be a promise to do or refrain from doing something or, more often, it could be money, goods, or services. You must either confer a benefit or incur a detriment in relation to the other party. To quote Lush J in Currie v Misa,

[a] valuable consideration, in the sense of the law, may consist in some right, interest, profit, or benefit accruing to the one party, or some forbearance, detriment, loss, or responsibility, given, suffered, or undertaken by the other. ¹⁹

Consideration is a flexible concept, one of the few restraints being that whatever you promise to the other party must be legal in the sense that the law will recognise it. If what you are promising is unlawful then so too is any promise to exchange it. ²⁰ ‘A promise the performance of which would necessarily be illegal is no consideration’. ²¹ There are aspects of the coffin confessions contract that are arguably ‘illegal’ or otherwise socially unacceptable and therefore impugn the contract’s purported enforceability.

The illegality and public policy issue

It is entirely plausible that an aggrieved friend or relative of a client may take issue with a coffin confessor interrupting their deceased loved one’s funerary service, even where that client has clearly requested and paid for this interruption. Presuming the friend or relative learns of the client’s contract while the client is still alive and knowing that they and others at the client’s funerary service would likely be impacted by the information proposed to be shared (particularly where the information is damaging or distressing), they would be interested in having the contract nullified to prevent the coffin confessor from fulfilling the service. The friend or relative would face a considerable legal hurdle in the privity doctrine (discussed further below), but assuming this was overcome in one of the ways discussed later, the next challenge would be in establishing that the contract was invalid.

Why might contracts to make coffin confessions lack enforceability? The answer is simple: they will, in all likelihood, involve a violation of the law, rendering them illegal. Even if they do not do so, there is an argument that public policy should deny such contracts legal effect on the basis they facilitate highly immoral and socially untenable conduct. Although the public policy doctrine in contract law is somewhat formless, the common law courts have accepted that contracts can be invalidated where their enforcement can be seen as detrimental to society. This typically requires evidence that the contract violates the attitudes and mores of the community, as reflected in any of the established ‘heads’ of public policy. ²² One such head is contracts that anticipate or require engagement in unlawful conduct. Even if there is no express or implied statutory prohibition against particular conduct, where that conduct nonetheless may or does involve the infringement of legal principles or provisions, it is liable to be invalidated on the basis of public policy. ²³

An illustrative case example is North v Marra Developments Ltd, ²⁴ where a stockbroker engaged by a company to provide advice on a takeover agreed to purchase some of the company’s shares at an inflated price so as to increase the company’s market value. The stockbroker later sued for remuneration allegedly due to him, and the company argued the contract was illegal given it contravened securities legislation by artificially inflating the company’s share price. The High Court held that although the contract itself was not illegal, it was contrary to public policy in that it contemplated violation of the securities legislation from the outset, and the very purpose of that legislation was to safeguard the integrity of the securities market and prevent corruption. It is plausible that an analogous argument could be made in respect of coffin confessors where they intend to disrupt a funerary service in such a way that it becomes, for example, disorderly conduct. ²⁵ It matters not that the client has requested the service; their opinions and wishes do not override the law’s appraisal of the desirability of the conduct.

Much clearly turns on the confessor’s proposed methods for disclosing the client’s information. This, in turn, is determined by the client’s instructions. If there was some kind of safeguard in place on the confessor’s part, such as a stipulation in their terms of service that any confessions must not be delivered in a manner that does or may violate the law, this would likely undermine any allegations the contract was contrary to public policy. However, such a stipulation may be counterintuitive given the very purpose of coffin confessions is to be dramatic and stir controversy, otherwise the client would likely never have requested the service inter vivos.

Of course, the decision to invalidate a contract must be rooted in principle, not sentiment, and there is equally strong public policy in enforcing legal agreements voluntarily entered into, particularly where those agreements, although unusual, are prima facie lawful. We must therefore consider coffin confessions contracts and the illegality point in greater depth, because illegality operates both as a head of public policy and as a vitiating doctrine in itself. Importantly, as will be discussed shortly, unlike in situations where no express or implied statutory prohibitions against conduct exist, but where that conduct nonetheless anticipates some other infringement of the law, in the case of coffin confessions there are in some jurisdictions express statutory prohibitions that may specifically operate to render a coffin confessor’s work illegal. A professional coffin confessor’s role is to disclose a deceased’s secrets to their loved ones at their funerary service. To use the examples given by Bill Edgar, this generally involves interrupting services, silencing attendees with pointed words, asking people to leave, and more. The ultimate aim, of course, is to reveal the deceased’s information as they intended it to happen.

Attending someone’s funeral service is not illegal. However, causing disturbance at such a service is. Legislation in some Australian jurisdictions renders it an offence for persons to disrupt funeral services, whether religious or otherwise. Section 7A(1)(a) of the Summary Offences Act 1953 (SA), for example, reads: ‘A person who intentionally … obstructs or disturbs (1) a religious service; or (2) a wedding or funeral (whether secular or religious) … is guilty of an offence’. Section 7A(1)(b) similarly makes it an offence to obstruct or disturb persons heading to or from a wedding or funeral ‘in a way that is calculated to be offensive and is related in some way to their attendance, or intention to attend, the religious service, wedding or funeral’. The prescribed maximum penalty is $10,000 or imprisonment for two years. Sadly, there is a dearth of case law addressing this provision, ²⁶ and so it is difficult to assess whether and how a confessor might argue that they were not obstructing or disturbing the relevant funerary service. ‘To obstruct is to block or get in the way of something, but may refer to preventing or interfering with a physical action or the movement of something’. ²⁷ A confessor might obstruct a service, for example, by blocking the path of mourners within or around the site of the service, or stopping a mourner from doing something (for example, attempting to deliver a eulogy). Similarly, the notion of ‘disturbance’ tends to encapsulate the agitation or disruption of tranquillity or peace in a social setting, even where such interference is small. ²⁸ A confessor interrupting a funerary service to speak at or to attendees and say surprising and potentially distressing or damaging things might be readily construed as a disturbance, particularly because such behaviour is unorthodox at funerary services.

There are equivalent provisions to South Australia’s s 7A in some of the other states and territories. ²⁹ In others, interference with, or interruption of the free passage of, funeral corteges or authorised processions (whether comprised of persons and/or vehicles) is an offence. ³⁰ In those jurisdictions where there are no specific provisions, it would seem that broad proscriptions against disorderly conduct and the like could serve to penalise the disruption of funerary services. ³¹ In whatever form, it would seem that there are laws that would apply to prohibit interruptions at a funerary service, meaning any contract requiring such interruptions would likely be unenforceable on the basis they facilitate illegal conduct. A contract obligating a party to do something which statute expressly or impliedly prohibits has no effect. Even if the contract is lawful on its own terms, where it will or may be performed in a manner that a statute prohibits, it will similarly be unenforceable. ³² Where additional services, such as having to destroy a client’s unlawful possessions (eg, illicit drugs) are required of the confessor, this could be conceived as an agreement to prejudice the administration of justice given it technically conceals commission of an offence, ie unlawful possession of illicit drugs. This is a basis upon which public policy would invalidate a contract. ³³

If no such laws were deemed to prohibit coffin confessions, it is arguable, as explained above, that public policy would nonetheless deny a coffin confessions contract legal effect. Public policy can vitiate a contract which, though not expressly or impliedly prohibited by statute, nonetheless contemplates infringement of the law. ³⁴ The courts have otherwise been regrettably vague when it comes to explicating the principles triggering application of the public policy doctrine. ³⁵ So vague is the doctrine that it was once famously described by Burrough J in Richardson v Mellish as ‘a very unruly horse’ and one that would take you to locations unknown once you were astride. ³⁶ We know that the courts balance the gravity of the allegedly anti-social act and the extent to which it will be encouraged by enforcement of the contractual right asserted against the social harm in refusing to enforce the right. ³⁷ The courts do not lightly cancel contracts on the grounds they are broadly objectionable. The public interest in enforcement is always contemplated. ³⁸ To reiterate an earlier point, it seems that much would likely turn on how the coffin confessor plans to fulfill their obligations and disclose the stipulated news to attendees at the deceased client’s funerary service. If it were established that the contract did not anticipate nor require significant and unruly interference with funerary services, but rather envisaged the discrete and compassionate disclosure of information in an appropriately civilised manner, it would likely be valid.

A point about privity (and death)

There is another notable problem with attempts to challenge the validity of a coffin confessions contract: privity. The doctrine of privity stipulates that only parties to a contract may acquire rights and incur liabilities under that contract. ³⁹ A coffin confessions contract is between the confessor and the client. The client’s death is, of course, the condition precedent to the contract coming into effect. What this means is that no third party can seek to enforce some kind of right or obligation under this contract, because they are neither the confessor nor the client. There are, however, some exceptions to the privity doctrine, such as intended third party beneficiaries under insurance contracts ⁴⁰ or where contract rights or obligations are negotiated by an agent acting on behalf of one of the parties, assigned, or otherwise deemed to be held on trust for a third party. ⁴¹ It is also possible that one of the contracting parties could, through their words or conduct, open the door to an estoppel claim.

More recently, a majority of the High Court in Hobart International Airport Pty Ltd v Clarence City Council ⁴² held that a party who is not privy to a contract and who seeks declaratory relief in respect of enforceable rights under that contract, can pursue such relief where they can demonstrate a ‘sufficient’ or ‘real’ interest in obtaining the relief sought. ⁴³ Having a mere commercial interest in the contract will not suffice. ⁴⁴ It is plausible that an aggrieved friend or relative of a client – the client having contracted for coffin confessions services – might demonstrate that they have a sufficient or real interest in the matter. After all, they will presumably be impacted by the information to be disclosed, particularly where the information is damaging or distressing. Although the impact may be indirect, they are nonetheless part of the social or familial network in which the client existed, meaning their other relationships may suffer through the coffin confessor’s actions at the client’s funerary service. A court might be persuaded to consider this a sufficient or real interest justifying their application for a declaration, for example, that the contract is invalid.

Where an exception to the privity doctrine could not be established, it might be argued instead that the contract is terminated on the client’s death. In some contexts, such as employment, the death of the employee naturally terminates the contract. This is because the contract requires and anticipates their continued existence. If the contract does not expressly provide that it terminates at the death of the employee, there is an implied condition that it does so. ⁴⁵ In the context of a coffin confessions contract, however, it is clearly anticipated that the client must pass away before the contract comes into effect. As mentioned earlier, the very condition precedent to the contract is that the client be deceased in order for the confessor to assume his or her obligation to perform. Accordingly, the suggestion that the contract was automatically frustrated by the client’s death is clearly futile. In any event, even if a contract is frustrated, accrued rights and obligations survive. ⁴⁶ The deceased client’s wishes, enshrined in contract, would therefore likely have a legal basis for enforcement.

Conclusion

The concept of ‘coffin confessions’ is clearly unusual and somewhat ghoulish. Contracting for such services is equally uncomfortable but is now a lucrative industry. This article has explained how contracts for this service might be unenforceable on the grounds of illegality or public policy in that they would ordinarily require or anticipate disruption of funerary services in a manner contrary to law. It appears that enforceability would turn on the coffin confessor’s contractually mandated, or otherwise intended, method of performance. If this involved significant and unruly interference with funerary services, it would likely fall foul of the law. Discrete and compassionate disclosure of information in an appropriately civilised manner, on the other hand, would likely see the contract survive challenge.

Given the popular method for coffin confessors – in line with their (likely disgruntled) client’s final wishes – is to be blunt, assertive, humorous and so on, and possibly to destroy property that could be incriminating, a great many coffin confessions contracts would likely be impugnable. An aggrieved person seeking a declaration of invalidity would need to circumvent privity but, given the significance of the information being shared and the potential impacts on them as a relative or friend of the deceased, they would have a good case. Whether coffin confessions contracts will be deemed within the spirit of the law remains to be seen but, in the meantime, the ‘profession’ of coffin confessors will ensure that the wishes of the dead survive them.