Unfortunately the memories of loved ones can be soured by disputes arising from the decisions which are made surrounding the funeral of the recently deceased. With people leading increasingly complex lives and with only one third of people having a Will, such disputes are increasing.
Here is a brief summary of the current law regarding funeral arrangements.
Ownership of the body
No-one can own the deceased’s body so it can't form part of the estate and the beneficiaries can't claim any value over it. The exception to this rule is where the body has undergone a process which causes it to acquire “value” e.g. dissection, embalming. The key issue is whether the body is something more than a corpse awaiting burial.
Although no one owns the body, a person can possess a body for the purposes of disposal. This is where matters can become tricky as the Personal Representative has an entitlement to possession.
If the deceased left a Will, the Executor appointed under that Will is entitled to possession of the body. The right of the Executor appointed under the Will is prioritised over family members without a grant.
The difficulty is that two thirds of people die without a Will. In that case, the representative rights rest with those who take a grant of Letters of Administration. This can often lead to disputes between those with an equal entitlement to the grant, for example:
The parent of a deceased child
A householder in whose possession the body resides
When the deceased dies in hospital, the hospital being in lawful possession of the body may arrange for the disposal of the body in certain exceptional situations. This may arise where a Personal Representative has not been appointed or there is a dispute over the validity of the Will
The local authority to the area in which the body was found if no other arrangements had been made
The next of kin does not have the right or responsibility to dispose of the body. However the next of kin may be entitled as a result of being a Personal Representative.
The deceased’s wishes
It used to be the case that the Personal Representatives should consider the deceased’s wishes but were not bound by them. This now needs to be placed in the context of the Human Rights Act 1998 (HRA) and in particular:
- The right to respect family life; and
- The freedom of thought, conscious and religion.
There have been a few challenges under HRA and the Court has now given guidance on what is of key importance. This includes the deceased’s wishes, as well as the wishes of family and friends, the place the deceased was most closely connected with, and the practicalities of arranging the funeral.
There is a difficulty with ashes in that there is potentially a wide class of applicants who can apply to deal with the ashes and the regulations governing their disposal (The Cremation (England and Wales) Regulations 2008 (“the Regulations”)) do not set out the framework for dealing with disputes.
At a time when the close family may not be in a position to make arrangements for cremation, they may lose the right to deal with the ashes if they don’t apply under the regulations. It is therefore important that they apply if there is a risk of a dispute over the disposal of ashes.
Whilst there is nothing illegal in dividing ashes between family members, this is unattractive and unlikely to be the approach adopted by the courts. This can create very difficult situations that can be costly and upsetting to resolve.