Bishop & Sewell
Flower

After a loved one dies, one of the first matters that people turn their minds to is planning the funeral. In some instances, a dispute can arise between close relatives or friends about the funeral, such disputes can include:

  • Family members feeling excluded from the funeral planning.

  • Whether the body should be cremated or buried

  • The location of the funeral or burial

  • What happens to the ashes after cremation?

During such an emotional and distressing time, disputes can escalate, and parties can find it difficult to find a solution, especially as it is often misunderstood whose responsibility it is to arrange the funeral.

Who has a duty to dispose of the body?

It is accepted that there is ‘no property in a corpse’, therefore a body cannot be sold, gifted, or disposed of by a Will.  If funeral wishes are included in a Will, these are not legal binding, and they cannot be enforced.

However, the law provides an order of priority for individuals who have a right to ‘possess a body’ and have the authority to arrange the funeral. If there is a Will, then the executor is entitled to possession. If there is no Will, then it is the person who has priority on intestacy (in order, this will be a surviving spouse, children, parents, then siblings of the deceased).

Therefore, it is usually the executor who has a duty to dispose of the body and arrange the funeral. Where funeral wishes have been expressed, although not binding, it is usual for these wishes to be followed to avoid a potential dispute.

However, when a dispute does arise the Court can be called upon to make a decision regarding the disposal of the body.

What power does the Court have to intervene with funeral disputes?

The Court can assist under one of three different powers, which are:

  1. Under their inherent jurisdiction to direct who should have control over the burial of a body; or
  2. Under section 116 of the Senior Courts Act 1981, the Court can appoint someone to be a personal representative to an estate, who would then have the authority to dispose of the body; or
  3. under CPR 64.2 (a) (i) the Court has the power to determine any question arising in the administration of the estate of a deceased person.

What factors will the Court consider when making a decision regarding the funeral/burial?

The Court will primarily want to ensure that the deceased’s body is treated with respect and dignity. In Hartshorn v Gardner [2008] EWHC 3675 (Ch) the Court confirmed that they would consider the following factors when reaching a decision:

  • The deceased’s wishes;
  • The reasonable wishes of family and friends;
  • The place the deceased was most closely connected with; and
  • Practicalities for the proposed burial

What if a dispute arises about the ashes after cremation?

Assistance of the Court can also be sought in relation to a dispute regarding ashes. The Court will consider the same factors from Hartshorn as listed above when making a decision. In Fessi v Whitmore [1999] 1 FLR 767 the judge found that it would be “wholly inappropriate” for the ashes to be divided between the parents of the deceased.

What should I do if a dispute arises?

We would advise that you seek legal advice as soon as possible. If a funeral has been planned, then an injunction can be sought to prevent the burial until a final decision has been made by the Court or agreed between the parties.

If you are concerned about the funeral arrangements of a loved one, please contact Tiggy Hawkesworth or Rachel Waller on 020 7631 4141 or email contentiousprobate@bishopandsewell.co.uk

The above is accurate as at 21 June 2022. The information above may be subject to change during these ever-changing times.

The content of this note should not be considered legal advice and each matter should be considered on a case-by-case basis.


Category: Blog | Date: 21st Jun 2022


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