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? The team, who have 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  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  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:
- the surviving husband or wife;
- the children of the deceased and grandchildren in the case of a deceased child;
- the mother and father of the deceased;
- blood-related brothers and sisters, and niece or nephew in the case of a deceased sibling;
- grandparents; and
- 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.