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:
- Under their inherent jurisdiction to direct who should have control over the burial of a body; or
- 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
- 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  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  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.
Contact our Contentious probate Team
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.