Over the past few years we’ve had to deal with an increasing number of disputes regarding funerals and the burial/cremation of bodies. The increase in second and third families, more dispersed families, more complex family relationships and less involvement in organised religion with a move away from traditional views regarding burials and the treatment of ashes are some of the factors behind this increase.
We are currently holding the ashes of at least one individual where the family are in dispute. One situation also led to us having to remove a tombstone from the Deceased’s property and secure it in our storage room until the family could agree on the wording to be put on the stone.
The death of a family member can bring out hidden rivalries and differing views as to the deceased’s wishes on a number of areas including funeral and burial arrangements
particularly if the deceased did not clearly set out their intentions.
Funerals and Burial Arrangements
When it comes to burial disputes the question of ownership of the deceased’s body often arises.
It was established back in 1857 in the case R v Sharpe [1857] that the “law recognises no property in a corpse”. This was later cited in the case of Williams v Williams [1882] which
confirmed that there can be no property in a deceased’s body. In 1999 this was was reemphasised in the case of Buchanan v Milton [1999] when Baroness Hale said:
“There is no right of ownership in a dead body. However, there is a duty at common law to arrange for its proper disposal. This duty falls primarily upon the personal representatives of the deceased…”
Whilst there is no right of ownership in an unaltered body the position can be different when the body has been altered by some process.
If the deceased left a will and appointed a personal representative then the deceased’s personal representative will have the right to possession, not ownership, of the body (Sharp
v Lush [1879]) & (Dobson v North Tyneside Health Authority [1997]).
The personal representative, also has a duty to arrange for the disposal of the body (Williams v Williams [1881]) & (Rees v Hughes [1946]).
Whilst a personal representative will usually honour the deceased’s wishes regarding their funeral and the disposal of their body, a direction contained within a will as to the disposition of the testator’s body cannot be enforced (Williams v Williams [1881]). Perhaps this approach needs to be revisited to ensure that provided any instructions left by the testator in their regarding the disposal of their body are reasonable they should be binding on the testator’s personal representatives. This may well reduce some of the disputes that arise but clearly will not impact intestate estates.
If the deceased died without a will then the person/s entitled to a grant of letters of administration for the deceased’s estate (Rule 22 of the Non Contentious Probate Rules 1987) follows this order of priority: the surviving spouse/civil partner, children and any of their children if their parent has died, parents etc.
That individual/s will ultimately have lawful possession of the body and the right to deal with the funeral and the disposal of the body including the location of any burial. If the deceased was unmarried but had a surviving partner then they would have no rights if there was no will.
Frequently individuals who have the same right of priority to deal with the burial will have differing views on what the deceased would have wanted. If no close family member has
survived the deceased or if they do not wish to be involved then the Local Authority covering the area in which the deceased died ultimately has responsibility for sorting out the funeral
arrangements and the disposal of the body (s.46 of the Public Health (Control of disease) Act 1984).
In the event of deadlock in relation to the deceased’s burial arrangements then an application could be made to Court for a limited grant of administration to dispose of the body or directions could be sought from the Court to break that deadlock.
Whilst a complete unaltered corpse cannot be treated as property in the case of R v Kelly [1999] the judge stated that:
“parts of a corpse are capable of being property … if they have acquired different attributes by virtue of the application of skill, such as dissection or preservation techniques for exhibition or teaching purposes”.
How far does this right of ownership to body parts extend?
A prime example would be Dr Gunther von Hagens and his plastination of human bodies which are shown in his body works exhibitions or even mummies. These bodies appear to
fulfil the criteria set out in R v Kelly for a body to become property capable of being owned and in the case of mummies are sold indicating they are viewed as property.
Ownership of ashes
Whilst there has yet to be a clear judgement on whether ashes are property and therefore capable of being owned. If the line of thinking set out in R v Kelly is followed then due to the application of skill, i.e. the cremation itself, and the body achieving different attributes i.e. its transformation into ashes, then the ashes could be considered to be property. There can though be no doubt that the container holding the ashes is property and therefore subject to ownership.
s.30 of the Cremation (England and Wales) Regulations 2008 (as amended) addresses the disposal of ashes after a cremation. It states that the cremation authority must dispose of the ashes in accordance with the instructions of the person who applied for the cremation. Where no instructions are provided by that person or where the ashes are not collected in accordance with those instructions, the cremation authority may dispose of the ashes in a burial ground or a part of crematorium reserved for the burial or scattering of ashes. In exceptional circumstances the cremation authority may at their discretion release the ashes to someone other than the applicant or the applicant’s nominee.
Intervention of the Court in burial disputes
The Court can intervene in burial disputes in a number of ways:
1. Following an application made pursuant to part 64 of the CPR;
2. Pursuant to its inherent jurisdiction (an example of this being the case of Hartshorne v Gardener [2008]);
3. Under s.116 of the Senior Courts Act 1981 (this allows the Court to appoint an administrator who does not have priority where “special circumstances” make it “necessary or expedient”)
The court will consider four key “special circumstances” when dealing with burial disputes (as set out in Hartshorne v Gardener):
1. The wishes of the deceased;
2. The level of the deceased’s connection to proposed burial places (the court will usually favour the place the deceased is most closely connected with);
3. That the body is buried or cremated with the least possible delay and in a respectful manner.
4. The wishes of close family and friends;
Location of the burial
In Hartshorne v Gardener the Court released the body under its inherent jurisdiction to the deceased’s father to be buried at a place the deceased had a close connection to. That
place was where the deceased had lived, worked and where his close friends and fiancée where based. That close connection was seen as the “overriding factor” in deciding where
the deceased should be buried and outweighed the mother’s desire to have him buried in the city she lived in. It was stated in this case that “the most important consideration is that the
body be disposed of with all proper respect and decency and, if possible, without further delay”.
In Anstey v Mundle [2016], the Court had to decide whether the deceased should be buried in Jamaica where he had been born or in England where he had lived and died. Applying the
‘special circumstances’ from Hartshorne v Gardener, the Court considered that he had set out in his will his wish to be buried in Jamaica; Jamaica was the country he was most closely
connected with; the majority of his family agreed he should be buried there and his body should therefore be released to his niece in Jamaica for burial there.
In Y v Z [2018], the Court had to decide whether the Deceased should be buried in the country of his birth, supported by his mother, father and brothers or should be buried in England, supported by his wife and children, where he had lived for many years, having married and had three children here. The Court found he should be buried in England close to where his wife and children lived. In coming to that decision the Court took account of various factors including the fact he had become a British citizen, lived for 19 years in England and his wife and children could easily visit his grave.
In the 2019 case of E (A Child: Burial Arrangements), the father sought letters of administration for his child’s estate with opposition from the child’s mother who was in prison in relation to her child’s death. The Court used the criteria set out in Hartshorne v Gardner and decided that the father’s proposals regarding the funeral and burial were reasonable. He was pursuant to Section 116 Senior Courts Act 1981 provided with a grant of letters of administration for the purpose of disposing of the body and dealing with the funeral arrangements.
In the 2020 case of Ganoun v Joshi [2020] there was a disagreement between the deceased’s widow and mother as to where the deceased should be buried, either Algeria where he was born or the UK where he had lived for 15 years. He died intestate and his spouse had priority to administer his estate and arranged his burial in the UK. His mother applied under s.116 to pass over his spouse alleging special circumstances, and also sought a declaration the deceased had not been buried decently with the aim being to support an application to exhume the deceased’s body so it could be reburied in Algeria. The mother was unsuccessful, she had not established the necessary special circumstances for the Court not to follow the order of priority in relation to grants of letters of administration.
More recently in the 2023 case of Otitoju v Onwordi the Court considered competing applications to determine the funeral arrangements for the deceased. The deceased’s daughter (supported by her other siblings) sought an order allowing her to take possession of the deceased’s body and arrange its burial/disposal. She also sought and was granted an interim injunction against the deceased’s partner to prevent her from taking possession of the body and arranging its burial/disposal. In part claiming the deceased died intestate.
The deceased’s partner sought to set aside the interim injunction relying on a Will she claimed had been made by the deceased and within which she and her daughter were named as executors. The will was unsigned but bore the deceased’s finger print (sufficient to meet the execution requirements under the Wills Act 1835) and was on its face valid.
The daughter claimed special circumstances applied as the will was being challenged and therefore the deceased’s funeral arrangements should not be made by the executors named in the Will. The Court found these did not justify overriding the position of the executors under s.116 of the Senior Courts Act 1981 and the executors of the Will were entitled to possession of the body and responsible for making the funeral arrangements.
Summary
Due to their nature it is essential to act quickly when it come to a burial dispute and before there has been an interment or scattering of ashes.
If necessary urgent injunctions can be applied for to prevent a burial and allow the Courts the opportunity to rule on the dispute. Most disputes of this nature are though resolved by
compromise at what is an already deeply upsetting time for the family.
