Cicero stated “the life of the deceased is placed in the memory of the living”

Cicero stated “the life of the deceased is placed in the memory of the living”

Unfortunately that memory is often soured by disputes between loved ones in relation to the decisions made regarding the funeral. With people leading increasingly complex lives and with only one third of people having a Will, such disputes are increasing.

The purpose of this article is to focus on the distinct issue of disputes in relation to ashes. However it is probably helpful to summarise the current law regarding funeral arrangements.

Ownership of the Body

It is trite law that there is no legal property in a body (Williams v Williams [1882]). The exception to this rule is where the body has undergone a process which causes it to acquire “value”. The key issue is whether the body is something more than a corpse awaiting burial.

A person can possess a body for the purposes of disposal. This is where matters can become tricky. The following have an entitlement to possession:

(i) The Personal Representative
If the deceased left a Will, the Executor appointed under that Will is entitled to possession of the body see Buchannan v Milton [1999].
The right of the Executor appointed under the Will “trumps” those of family members without a grant.
In the New Zealand case of Murdock v Rhind [1945] the Court refused to grant an injunction in favour of the widow who wished to cremate her husband’s body in opposition to the Executor who wished to bury the body in the family plot.
The difficulty is that two thirds of people die without a Will. In that case the representative rights vest 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 (e.g parents of children or children of a parent).
(ii) The parent of a deceased child.
(iii) A householder in whose possession the body resides.
(iv) 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 that cannot be resolved in a reasonable time frame. This occurred in Lewisham Hospital NHS Trust v Hamuth [2006] in which there was a dispute in relation to the validity of the Will and the Court gave authority to the hospital to arrange the funeral.
(v) 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 (see Dobson v North Tyneside Health Authority). However the next of kin may be entitled as a personal representative.

The deceased’s wishes

It used to be the case that 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 and in particular:

1. Article 8, the right to respect family life; and
2. Article 9 the freedom of thought, conscious and religion.

There have been few challenges under the Human Rights Act. The most notable challenge was in Borrows v HM Corner for Preston [2008] in which the judge applied Article 8 to allow the deceased’s uncle, who had no standing, to take possession of the body. The uncle had been the principal carer for the deceased and his application was taken in priority to that of the mother with whom the deceased had a limited relationship. The judge was also concerned that the mother was a heroin addict incapable of making the arrangements or abiding by her sons wishes.

In delivering judgment, the judge gave guidance to coroners dealing with disputes. He set out a two stage test in which the following questions should be asked:

1. Are there any special circumstances which may displace the usual priority to a grant; and
2. If the answer to 1 is yes, is it expedient for the Court to pass over those with a priority.

The judge accepted that it would only be in exceptionally rare cases that the answer to both questions would be yes.

Hartshorne v Gardener [2008] set out the factors the Court will consider when deciding upon the disposal of a body when those entitled to in the same degree cannot agree. In that case the mother wanted the body to be buried in the town where she lived and where the deceased had grown up, the father on the other hand wanted him to be buried where he had lived his adult life and where his fiancée resided.

The Court considered the following to be of key importance:

1. The deceased’s wishes:
2. The wishes of family and friends:
3. The place the deceased was most closely connected with;
4. The practicalities of arranging the funeral.

Ashes

The Cremation (England and Wales) Regulations 2008 deal with cremation.

Regulation 15 sets out that the application for cremation may be made by the following:

1. An executor of the deceased person or;
2. A near relative who is aged over 16. This includes widows, widowers, surviving civil partners, parents, children or other relatives usually residing with the deceased.

There is a third category which applies if no one falls into 1 or 2 above, which is any other person who the medical referee is satisfied is a proper person and that there are reasons why the application has not been made by the executor or near relative.

The person who applies for the cremation is called the applicant, and cremation may not take place unless an application has been made.

Under Regulation 30 the cremation authority must give the ashes to the applicant or a person nominated by the applicant. If that person does not want the ashes or does not collect them, the authority must either bury them or scatter them on a burial ground or a place reserved for that activity, having given 14 days’ notice to the applicant of their intention to do so.

Uncertainty

The difficulty is that the Regulations provide for a potentially wide class of applicants and do not set out the framework for dealing with disputes.

It is not inconceivable that the recently bereaved may not be in a position to make arrangements for cremation but may have strong views regarding the scattering of the ashes after the cremation has taken place. As they are not the applicant a strict reading of the Regulations would suggest that they have lost the right to the ashes since the obligation is to deliver the ashes to the applicant or a person nominated by the applicant.

In DP v JCP [2010] DJ Marin noted that the Regulations simply cater for the administrative act of ensuring the cremation authority can lawfully hand the ashes to someone. He considered the Australian case of Leeburn v Derndorfer (2004 VSC 172) where the judge held that;

(i) Ashes may be owned and possessed, with the qualification that they should be treated with appropriate respect and reverence;
(ii) Ashes do not form part of the estate and do not pass under a Will
(iii) The Executor will hold ashes as trustee; The trustee should hold them in a way that seems appropriate having regard to any direction from the deceased in the will or otherwise and having regard to claims of the relatives or others with an interest.

There is nothing illegal in dividing ashes between family members, but this has not generally been the approach of the court where there has been a dispute. In Fessi v Whitmore [1999], HHJ Boggis thought it would be “wholly inappropriate” to divide a child’s ashes between the opposing parents.

Practical Tips to avoid a dispute

Too often not enough information is given to a Testator during the preparation of their Will on the realities of who has responsibility for arranging their funeral. Quite often, an assumption is made that family members will be involved in arrangements, even if they are not appointed as the Executor(s) in their family members’ Will. This creates a clear conflict with the current Law and the potential for arguments even before a loved one is laid to rest.

To minimise the likelihood of a dispute, it is important to ensure that the Testator is advised at the point of preparing their Will of who actually takes responsibility for arranging their funeral. This will enable them to make an informed choice on the matter of who should be appointed as their Executor(s). If family members are not appointed, early discussions should be encouraged between the Testator, family members and appointed Executor(s) on preferred funeral arrangements to ensure that all parties are clear on the Testator’s wishes. This would encourage a cohesive approach in organising arrangements and help reduce the pressure for all involved at time when parties already have the difficulty of coming to terms with the loss of a loved one.

Adam Draper, Partner at Shoosmiths LLP

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