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Funeral And Burial Disputes

A death in the family is an emotional and difficult time, and one of the things that the family will need to think about is making arrangements for the funeral and the disposal of the deceased’s body.  The deceased may have specified in their Will how they want their body to be disposed of, whether this be burial, cremation, donation to research science, or something else.  It will be down to the Executor (or personal representative, if there is no Will), to ensure that the deceased’s wishes are followed.

However, even if a Will has been validly executed by the deceased, their wishes relating to funeral/burial arrangements are not currently legally binding, nor are they legally enforceable.

In the absence of a Will, it is usually the deceased's family who take on the responsibility to make such arrangements.

The responsibility would fall on the individuals listed in the following order of priority:

  1. the surviving husband or wife or civil partner;
  2. the children of the deceased and grandchildren;
  3. the parents of the deceased;
  4. blood-related brothers and sisters (niece or nephew in the case of a deceased sibling);
  5. grandparents;
  6. blood-related uncles and aunts (cousins in the case of a deceased uncle or aunt).

If the deceased had no surviving blood relatives, then the responsibility would fall on any individual(s) who had an interest in the deceased's estate.

If there was no one to make the arrangements, or if there was a dispute as to the arrangements being made, the Court can step in.

The basic rule is that there is no property in the dead body of a human being (it does not form part of the estate).  In most cases, the personal representative has the main responsibility for making arrangements for the funeral and disposal of the body.  Dignity, decency, and avoiding undue delay are crucial priorities.

If there is a dispute between family members (especially when there is no valid Will), an interested party can apply to the court for an emergency injunction if it is "just and convenient to do so", to prevent any further steps being taken to arrange the funeral and disposal of the deceased’s body, until the dispute has been resolved.

Once an injunction has been obtained, a further court application would need to be made for the personal representative to be passed over if it is "necessary or expedient" or because of "special circumstances", allowing the applicant to deal with the funeral and disposal of the body.

The "special circumstances" can include the deceased’s wishes, the wishes of the grieving family, and the deceased’s religion, amongst others, but it will fall on the individual facts of each case. 

The factors that the court should consider come from the case of Hartshorne v Gardner, and later cases, as follows: -

  • The deceased's wishes (though these are not decisive; see Williams v Williams (1882) 20 Ch D 659 as to such wishes being unenforceable).
  • Reasonable requirements and wishes of grieving family members.
  • The place with which the deceased had the closest connection.
  • Above all, that the body be disposed of respectfully and decently and if possible, without further delay.

This is the criteria the Court would consider to help resolve a conflict, with each point assessed on the facts of each case to achieve the most appropriate disposal for the deceased, without delay and with proper respect and decency.

If there is no valid last Will, then there is a greater chance for disagreements to occur within the deceased's family when deciding the most suitable arrangements.