Funeral and burial disputes

Following the death of a family member or loved one, disputes can arise about funeral arrangements, disposal of ashes or what should happen to the body, including the method and location of any burial or scattering of ashes.

While many people choose to set out how they want to be laid to rest in their will, contrary to popular belief funeral wishes are rarely enforceable or binding. Many disputes therefore arise either where there’s some disagreement between loved ones over whether a will truly reflects a person’s wishes, where the will is silent on funeral wishes or where there’s no will.

Here at Hugh James, we’ve helped many clients faced with funeral and burial disputes, quickly and sensitively, so we’re on hand to guide you through the process.

We can advise on the following:

• Burial disputes
• Disposal of ashes
• Funeral disputes
• Responsibility for dealing with a body
• Disputes over headstones

Who owns a body after death?

A body is not capable of being owned. However, the responsibility to dispose of the body depends on whether or not there was a will and, if so, its terms.

Where there is a will, the responsibility to dispose of the body falls to the executors named in the will in the first instance. After that, the responsibility would pass to any residuary beneficiaries named in the will.

However, where the deceased didn’t leave a will, the person with the greatest right to take out a grant of letters of administration can take possession of the body. The hierarchy, set out in rule 22 of the Non-Contentious Probate Rules 1987, 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.

What happens if there’s a dispute about where a body should be buried or a dispute about where to scatter the ashes?

When the family or loved ones can’t agree about where to bury a body, scatter the ashes or generally about the funeral arrangements, the court can be asked to make the decision and impose different arrangements

While court proceedings should be a last resort, often these disputes need to be determined quickly, especially where one party has already taken steps to make arrangements for the funeral, burial or disposal of the ashes. As such, seeking legal advice at the earliest opportunity is crucial.

When asked to determine a dispute, the court will usually 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.

The last of these factors is the one on which the court usually places most weight in making its decision.

Where can I find out more information on funeral and burial disputes?

Read our article for more information on funeral and burial disputes, here.

How much does a burial dispute cost?

While we would always recommend trying to resolve funeral or burial disputes without court proceedings, often due to their nature and the timescales involved court proceedings are necessary. The general rule is that the “losing” party pays the majority of the “winning” party’s costs.

Each case is different, however, and we have a strong track record of achieving excellent results for our clients and providing frank, no-nonsense advice.

In many cases we are also able to offer tailored pricing options. We pride ourselves on the service we provide to our clients and back this up with service level guarantees; if you feel that the service you’ve received has fallen short then we will offer a discount on our fees, no strings attached.

Is a funeral or burial dispute suitable for mediation?

Mediation is a form of dispute resolution in which an independent person, known as a mediator, is appointed to try to broker a deal usually on a ‘without prejudice’ basis so that anything discussed at mediation can’t be disclosed to the court.

The usual format involves the parties attending a mediation with each “side” having their own, private room. The mediator’s job is then to work with you and your lawyer to try to achieve a positive settlement.

Although not suitable for every case, in our experience mediations do have a high success rate. Our experience and knowledge of burial disputes means that we are well placed to act in mediations and are proud to have surpassed our clients’ expectations in achieving positive settlements.

Our experience in funeral and burial disputes

Issuing urgent injunction to prevent funeral

Acting for a child of the deceased in circumstances where the deceased had died domiciled in the UK without making a will, but where there was evidence to suggest that she had expressed her wish to be repatriated and buried in the country of her birth, Nigeria. The deceased had even gone to the extent of purchasing land in the village where she was born, apparently for the purpose of returning there during the latter stages of her life.

Instructed just days before the funeral, Hugh James' expert team issued an emergency application to the High Court seeking an injunction to postpone the funeral, pending determination of a substantive claim requiring the court to determine the appropriate location of burial.

The case involved a number of unique features; the application was made during the height of the Covid-19 pandemic so the hearing had to be dealt with remotely and at short notice coupled with the particular challenges in terms of the arrangements proposed for the repatriation of the deceased’s body due to the worldwide restrictions on travel in place at the time.

Advising executors about burial dispute

Roman Kubiak, Partner, acted for the executor of an estate where the deceased died leaving a will but no instructions about his funeral and burial wishes.

The deceased was born in Ireland, but later moved to London where he resided for many years prior to his death. However, he had family living in both Ireland and the UK at the time of his death.

A dispute arose regarding the location of burial between the family and, despite efforts by the executors, no consensus could be reached.

As such, Roman issued an application for directions in the High Court. While the executors could have taken the decision themselves, to do so would have left them undoubtedly facing criticism by one or other side of the family.

In reaching its decision that the deceased should be buried in London, the court considered both written and oral evidence from a number of the deceased’s relatives, including his children.

Advising family about potential repatriation of a body

The team advised the deceased’s siblings in relation to a burial dispute, specifically as to whether the deceased should be buried in the UK where she had lived for many years before her death, or alternatively in Tanzania, being her place of birth.