Disputes over a funeral, burial or the ashes of a loved one are more common than you might expect.
Recent reports suggest disputes over the final resting place of a family member arises in around one quarter of deaths in the UK.
It is important to understand that, from a legal point of view:
- No relative or next of kin ‘owns’ a body because a body is not classed as ‘property’
- The person entitled to decide what happens to the body is the individual who is under a duty to dispose of the body (usually the executor)
- A crematorium must hand over the ashes to the person who delivered the body for cremation (usually the executor)
Do the final wishes of the deceased have any bearing?
In the past, it was generally accepted that the last Will and Testament only dealt with property. As a body is not legally classed as ‘property’ any instructions from the testator within the Will were for guidance only and could not be legally enforced.
However, more recently, this has been successfully challenged under Article 8 of the Human Rights Act 1998 under ‘respect for family life’ and could equally be open to challenge under Article 9, ‘freedom of conscience, thought and religion’.
Who has the legal right to decide how the body is disposed of?
Many people believe that the next of kin, i.e. a surviving spouse, partner, or other close member of the family, has the right to decide.
However, there are certain instances where this is not an automatic right. For example:
- A hospital has the right to detain a body if the person died from a notifiable disease.
- A coroner also has the right to take ‘possession’ of the body in order to determine the cause of death if it is sudden or unexpected. Once the coroner has completed their examination, the body will then be released to the family.
- If there is a Will, the person entitled to decide what happens to the body is the named executor who may or may not be a family member or next of kin.
- If there is no Will, it will be the individual who has priority on intestacy (under rule 22 of the Non-Contentious Probate Rules).
- Separate rules apply to a minor, with the duty falling to the parents.
Disputes among executors or family members
Where a dispute arises, either between executors or family members, it is important to seek prompt legal advice as in many cases the issues are time sensitive, particularly where it relates to arranging a funeral or one party is seeking to make plans for the collection of the ashes.
Please get in touch to speak with one of our experts for further guidance.
