9 June 2020 | Comment | Article by Richard Adams

Burial Disputes - who decides?

It’s not uncommon for disagreements to arise between family members and loved ones including over funeral arrangements, burial disputes or possession of ashes. So, who has the ultimate say and what can you do? Richard Adams, who has advised clients in a number of such cases, considers this delicate and sensitive issue.

The starting point in law is that a corpse is not a property as set out in the case of Williams v Williams [1882] 20 ChD 659.

Many people choose to set out their funeral and burial wishes in their wills. However, those wishes aren’t binding and nor are they legally enforceable.

There is a general assumption that the “next of kin” have the right to make arrangements for the disposal of the body. However, that’s not always the case.

While the law doesn’t give express rights over a corpse, it does impose responsibilities on certain people who are under a duty to dispose of the body and have a right to custody and possession of it. The law provides a hierarchy of people who have the right to determine the mode and place of burial which differs depending on whether the deceased made a will.

The primary duty usually falls on the executors or personal representatives (the catch-all term for those tasked with administering a person’s estate). This was set out in the case of Buchanan v Milton [1999] 2 FLR 844 by the former President of the Supreme Court, Baroness Hale, who said:

“There is no right of ownership in a dead body. However, there is a duty at common law to arrange for its proper disposal. This duty falls primarily upon the personal representatives of the deceased...”.

Where there is a will, the responsibility falls to the executors in the first instance and, failing that, to any residuary beneficiaries.

However, if the deceased didn’t leave a will, the order of priority for who has responsibility follows the same order as that of who can deal with the administration of the estate. That’s set out in rule 22 of the Non-Contentious Probate Rules 1987 and is as follows:

  1. the surviving husband or wife;
  2. the children of the deceased and grandchildren in the case of a deceased child;
  3. the mother and father of the deceased;
  4. blood-related brothers and sisters, and niece or nephew in the case of a deceased sibling;
  5. grandparents; and
  6. blood-related uncles and aunts and cousins in the case of a deceased uncle or aunt.

If the deceased has no living relatives then any person having an interest in the estate will be next in line.

This can of course result in a situation where a number of people share responsibility and that’s when disputes over funeral arrangements, ashes or burials can arise.

Ultimately, if agreement can’t be reached over a burial dispute, the court usually has to intervene.

 

Court intervention for burial disputes 

The court has the power to give directions in burial disputes in the following ways:

  1. Under its “inherent jurisdiction” such as in the case of Oldham Metropolitan Borough Council v Makin & Ors [2017] EWHC 2543 which was a case which dealt with the disposal of Moors murderer, Ian Brady’s ashes.

  2. Under section 116 Senior Courts Act 1981 which gives the court power to appoint a person to act as administrator of the estate and, thus, entitle them to make arrangements for the burial or disposal of the body.

  3. By giving directions on an application to the court under part 64 of the Civil Procedure Rules.

 

The factors to be considered by the court

When dealing with burial disputes, the court will consider the following factors:

  1. the deceased’s wishes;
  2. the reasonable requirements and wishes of family and friends who are left to grieve;
  3. the place the deceased was most closely connected with; and
  4. ensuring that the body is disposed of with respect and without delay.

Of these factors, the fourth is generally considered to be the most important consideration for the court. In Hartshorne v Gardener [2008] 2 FLR 1681, Sonia Proudman QC referred to it as the “overriding factor”.

This approach has been adopted in subsequent cases; for example in Anstey v Mundle [2016] EWHC 1073 (Ch) where the deceased, who was born in Jamaica, had subsequently relocated to England where he died.

A dispute arose about where the deceased should be buried i.e. in England or Jamaica.

The court found that the deceased had expressed a wish to be buried in Jamaica and that the party supporting a burial in Jamaica should be entitled to make arrangements for the burial.

In Oldham Metropolitan Borough Council and Anor. v Makin & Ors, Sir Geoffrey Vos stated:

In my judgment, the court does have an inherent jurisdiction to direct how the body of a deceased person should be disposed of. The court will normally, as I have said, be deciding between the competing wishes of different sets of relatives, and will only need to decide who should be responsible for disposal rather than what method of disposal should be employed. I cannot see, however, why the court's inherent jurisdiction over estates is not sufficiently extensive to allow it, in a proper case, to give directions as to the method by which a deceased's body should be disposed of. In my view, it is.”

Of course, each case will turn on its own facts, but the authorities provide helpful guidance as to the factors which will help the court reach a decision about a burial dispute.

When burial disputes arise, it’s crucial that steps are taken to resolve them as quickly as possible. If arrangements are already in place for burial, in the first instance it might be necessary to apply for an injunction to prevent the burial pending further order of the court.

If you have your own burial dispute and would like advice, please get in touch with our team. 

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Disclaimer: The information on the Hugh James website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. If you would like to ensure the commentary reflects current legislation, case law or best practice, please contact the blog author.

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