.svg){kind=small}
Insight > Into the universe
Into the universe
Burial disputes – certainty rather than cost?
With family set ups becoming increasingly complex, the risk that those left behind after a death will disagree on how the body should be dealt with is also increasing.
Burial disputes are by their nature deeply emotional and need to be dealt with urgently. Increased animosity caused by a burial dispute may lead to other claims or counterclaims causing delay and increased costs.
Whilst it may appear that emotional matters such as burial should be dealt with by the deceased's family, there are situations in which the responsibility may fall on a charity and clearly it is in the charity's interest if they are residuary beneficiary, to ensure costs are kept to a minimum.
Whilst it may appear that emotional matters such as burial should be dealt with by the deceased's family, there are situations in which the responsibility may fall on a charity and clearly it is in the charity's interest if they are residuary beneficiary, to ensure costs are kept to a minimum.
The Law Commission has recently announced that it is seeking to introduce a new legal framework to address what happens to our bodies after we die so that there is certainty and consistency.
This note summarises the current law surrounding burial disputes and sets out some thoughts on how to manage or reduce conflict.
Who owns a body?
The reality of the law governing the disposal of a human body is often at odds with the expectations of families and loved ones of someone who has died.
A body has no legal title. From the 1800s case law has established that there is no property in a corpse. A corpse is therefore incapable of being 'owned' or the subject of a transaction or offence and it does not form part of a person's estate. Equally it cannot be bought or sold, stolen or criminally damaged.
Duty
There are, however, rules that dictate who has the authority to say what happens to a body after death. There is a duty at common law for the personal representatives of the deceased to arrange for the proper disposal of the body. An executor appointed by will is entitled to obtain possession of the body for that purpose, even before there has been a grant of probate. The executor may determine the mode and place of burial even where family members object.
This right extends to the ashes of the deceased to enable the executor to dispose of the remains properly after cremation.
Where there is an intestacy, the law looks to the person with the right to take out a grant (as set out in rule 22 of the Non-Contentious Probate Rules 1987) to make the decision.
Wishes of the deceased
A testator may set out in their Will, for example, that they would like to be cremated and where they would like their ashes to be scattered. Whilst the Court seeks to uphold testamentary freedom, the deceased's wishes in relation to their burial are not legally enforceable. The executor should have regard to them but is not bound by them.
See below for a brief outline of the way in which the Law Commission are intending to review and potentially change the position in this area.
Funeral or burial expenses
Personal representatives are entitled to discharge reasonable funeral expenses from the deceased's estate, but what is 'reasonable' is a question of fact. Where the executor proposes to pay expenses of this nature that extend beyond your average funeral service then the consent of the residuary beneficiaries should be obtained.
A body has no legal title. From the 1800s case law has established that there is no property in a corpse. A corpse is therefore incapable of being 'owned' or the subject of a transaction or offence and it does not form part of a person's estate. Equally it cannot be bought or sold, stolen or criminally damaged.
Withers have previously been involved in advising a charity where an executor (who was also the will draftsman) was seeking to rely on (a) the testator's expression of wish that her ashes be scattered in the Caribbean by the executor and (b) a clause in the Will allowing 'the expense which he shall reasonably incur in carrying out this my wish including travelling and other expenditure shall be a proper funeral expense' to fund first class flights and luxury accommodation for a two week trip to Jamaica for him and his family. Eventually the executor backed down when we made the point this was not 'reasonable'.
Conflicts as to arrangements
It is often assumed that someone's immediate family members such as their spouse, parents or children have the responsibility for their burial and many would be surprised to find out that the responsibility may lie with someone else, such as your charity or the solicitor/third party that they have appointed as their executor.
If your charity is the executor and therefore has the duty to arrange for the disposal of the body, a dispute may arise if the family members/those left behind have a different view on the fate of the deceased's remains. Tensions are likely to be high as the corpse will remain unburied until such time as the parties can reach a compromise or the court intervenes to resolve the dispute.
Alternatively, in an intestacy situation, conflict can arise where two or more people who are equally entitled disagree as to the manner or place of the disposal.
Read v Hoarean [2024] is a very recent and incredibly sad case involving an 18 year old boy who died by suicide. He died intestate and there was disagreement between his parents as to the arrangements for his funeral and disposal of his ashes. The mother sought to divide the ashes equally between herself and his father. The father wished for the ashes to be scattered in Dartmoor. The Court considered written witness evidence from the child's grandparents and close friends. The child's wishes were not known. The only evidence before the Court in respect of his wishes was a previous suicide note in which he said he wished to be cremated. All of the witnesses agreed with the father's proposal and said that Dartmoor was a place the child was 'happiest'. The father said it would be 'morbid and disrespectful' to divide the ashes. The Court agreed with the father's proposal.
Although this was an intestacy, it is easy to imagine a situation where the deceased was an adult child who appointed your charity as executor. You would then need to decide what to do in light of the conflicting views of the parents.
Involving the Court
It is sensible to regard the Court's involvement as a last resort.
In Hartshorne v Gardener [2008], the judge said that the most important consideration is that 'the body be disposed of with all proper respect and decency and, if possible, without further delay'.
The best approach will be trying to broker a common ground between the parties.
The Courts are reluctant to intervene in such disputes as they 'delay the proper disposal of the body and the normal processes of grieving, while bringing further grief in themselves' (Buchanan v Milton [1999]). However, where it is proving impossible for the parties to agree the way ahead, there are a number of ways in which the Court can intervene.
By way of example in Oldham Metropolitan Borough Council v Makin [2017] proceedings were issued by the local council in relation to the remains of Moors Murderer, Ian Brady. The local council was concerned about the delay by his executor in disposing of his body. After a hearing lasting one and a half days the parties could still not agree and there was concern that particular disposal methods, including a suggestion that his ashes may be scattered on the moors, would cause offence to the victims and to the public at large. The Court therefore made an order (on grounds of public interest) that responsibility be taken out of the executor's hands so that the body could be disposed of 'quickly, lawfully and decently'. The Court used s116 Senior Courts Act 1981 to give the responsibility to an officer of the local council to dispose of the ashes in a way that could not be discovered by the general public. The Court also refused to allow a particular piece of music, described as 'offensive', to be played at the cremation (which Mr Brady had himself requested) instead the Court ordered no music and no ceremony. The Judge said that the deceased's wishes were 'relevant' but 'do not outweigh the need to avoid justified public indignation and actual unrest'.
In Otitoju v Onwordi [2023] there was a dispute over the burial of the deceased combined with a threatened claim regarding the validity of the deceased's Will. In light of the urgent nature of the burial dispute, the Court noted the presumption of validity in circumstances where a Will has been validly executed and appears on its face to be regular. The judge therefore decided the burial dispute on the basis that the Will was valid and held in accordance with the usual rules that the executor had the right to the possession of the corpse and the right to decide on the burial. The judge made clear that his decision would not have any impact on any later probate challenge which would take much longer to resolve and require more evidence.
Managing conflict and avoiding the court's involvement
Disputes about burials are deeply personal. Whilst the Court is able to apply the law to a situation where parties are incapable of reaching a conflict, the Court system is not the right forum for moral and value judgements as to what is best for a family and is not always in the best position to know what the deceased 'would have wanted'. These types of disputes are therefore much better dealt without the involvement, delay and cost consequences that the Court system will involve.
To a large extent treating a dispute such as this as a legal issue risks stoking confrontation. The best approach will be trying to broker a common ground between the parties. This note should provide your charity with the legal position so that it is in the best position to encourage agreement and discourage Court involvement.
In Read v Hoarean (above) the father did recognise with hindsight in his submissions that he ought to have spoken to his ex wife and tried to involve her in his arrangements.
The Law Commission's review
The Law Commission is due to begin work on a report and draft Bill to reform the current law on burial and cremation.
As part of a wider review of the law surrounding burial and cremation, this particular stage of the project will consider:
- The ability of a person to make a legally binding decision about what should happen to their body after they die, and their funeral;
- In the absence of a decision by the deceased, who has the right to make decisions about their body and the funeral, how their decisions could be challenged and the rules governing how the disputes should be resolved (including disputes between parents and other family members);
- Who should bear responsibility for a dead body, including the rules and standards applying to public health funerals; and
- The legal status, including ownership of or rights and responsibilities in relation to dead bodies and human remains (including those that are created as a result of new funerary methods).
It is expected that this review will bring greater certainty to the law in this area and reduce the potential for costly and upsetting disputes. For further details please click here.
Key contact
Zoe Gaskell
Associate | London