Lawyer Outlines Difficult Issues Surrounding Handling Of A Loved One’s Body

By Rob Dixon

The ongoing dispute in South Africa regarding where the country’s former president Nelson Mandela and his late children should be buried has highlighted the difficult issues surrounding how a person’s body should be handled upon their death, according to a legal specialist.

In the case, a number of Mandela’s relatives won a court directive ordering that the remains of three of his children, who passed away in 1947, 1969 and 2005 respectively, be relocated from Mvezo to Qunu, the site of his retirement home.

The order came around two years after Mandela’s grandson ordered the bodies to Mvezo where he was the chief. It is believed the intention would have been for the family to agree to shift Mandela’s eventual grave site to the same area, which could then potentially become a tourist pilgrimage site.

According to Irwin Mitchell’s Will, Trust and Estate Disputes team, the complicated dispute related to the resting place has put the issue of how a body is dealt with once a person dies firmly in the spotlight.

Rebecca Forder, a legal expert who specialises in contentious probate issues at Irwin Mitchell, said at present the law in England and Wales surrounding this remains unclear, despite the question of who has right to decide how a loved one’s body is handled frequently arising in a number of cases.

She outlined: “The long established legal principle is that there is not property in a deceased persons body and, therefore, that body cannot form part of an estate and the beneficiaries of the estate cannot claim any rights over the body.

“Generally, personal representatives named in a will are responsible for disposing of the body and must discharge this duty. If a person has died intestate and without a will, it is the administrators – those legally entitled to obtain the grant and administer the estate – who are responsible for such issues.

“In the recent case of Hartshorne v Gardner, the court provided a useful analysis of factors it would consider where those who have responsibility for disposing of the body cannot agree how to do so.”

In this case, the deceased’s parents could not agree on how to dispose of their son’s body, while there was no will and they were both equally entitled to administer his estate. The Court’s main concern was that the body should be disposed of with proper dignity and respect and stated that the following considerations should be taken into account:

• The deceased’s wishes
• The wishes of family and friends
• The place the deceased was most closely connected with
• Practicalities

Rebecca added: “The lesson to be learned from this type of dispute is to raise the question of funeral arrangements when preparing a will, and that the wishes for the funeral arrangements should be included in the terms of the will or an accompanying 'Letter of Wishes'.

“It is also important to share the wishes with executors and family members at the earliest possibility to ensure everyone is clear on your hopes. Remember, there may be circumstances when a will or Letter of Wishes may be looked at when it is too late.”

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