A brief burial dispute

Today I was instructed over a burial dispute on an urgent basis. I had wind that something might be coming my way for a few days, but nothing confirmed either way. At 08:29am this morning I received an email from my clerk that I was to be in the High Court District Registry in Birmingham at 1:00pm.

I live about an hour away from Birmingham. In essence, there is a funeral tomorrow the timing of which is highly contentious. The purported (my client does not accept the alleged final will) executors had not consulted the family at all regarding the arrangements. As such, I quickly got changed and made my way to chambers. By the time I arrived in chambers, the dispute was over, and I was no longer required to appear at 1pm. 

Whilst it is good that the parties eventually resolved their differences, it cost my client money. I must admit, I was looking forward to a scrap in the High Court over the issue! However, this is a good opportunity to do a blog post and cover the basics. Burial disputes are becoming more common in my opinion.

Questions:

  • How do I stop a funeral from happening?
  • Can you cancel a funeral?
  • Who has control of funeral arrangements?
  • How do I stop a funeral UK?
  • Is the next of kin legally responsible for funeral costs?
  • Who pays for funeral if there is no money?
  • Who owns human ashes?

Answers:

The starting position is that there is no property in a corpse. Nobody ‘owns’ the body. There are exceptions to this under the Human Tissue Act 2004 (concerns medical and scientific purposes) and the Human Fertilisation and Embryology Act 2008. The person responsible for disposing of the body is the executors if there is a will: see Buchanan v Milton [1999] EWHC B9 (Fam). If the deceased left a will with directions regarding what is to happen (i.e., a cremation or religious burial) they should be respected if possible but they are not legally binding: Holtham v Arnold [1986] 2 BMLR 123.

Any family wishes should also be taken into account. They are but a mere wish and cannot be enforced. There is scope to argue that Article 8 The executors have a right to the custody and possession of the body until it is disposed of: Dobson and another v North Tyneside Health Authority and another [1996] EWCA Civ 1201. Is that the same thing as responsibility for funeral arrangements? Not necessarily. They do usually make the arrangements for the funeral in the pursuance of their duty. 

What about where there is no will so no executor/rix? The duty falls to those who have priority under the Non-Contentious Probate Rules 1987 and section 46 of the Administration of Estate Acts 1925. The term when someone is appointed under these rules is administrator. If the deceased is sadly a child, then it is the parents that have responsibility of disposing of the body if they have sufficient means: Re Vann (1851) 169 ER 523. This duty arises as part of their parental responsibility for their child under section 3(1) of the Children Act 1989

The reason that the personal representatives (an umbrella term applying to both executors and administrators) usually take charge is because funeral expenses are classed as testamentary expenses which means it should come from the deceased’s money. So who pays for it all? As I said above, the funeral arrangements are testamentary expenses. However, if you are a family member and are hiring the services of an undertaker or funeral home then strictly speaking your contract is with them. Your departed loved one cannot enter into contracts anymore. I would expect any expenses to be reimbursed from the estate. 

What about when the deceased died skint (lawyers would say ‘impecunious’)? You’ll have to be careful about agreeing to any fees for the funeral because you might be on the hook for them without prospect of being reimbursed. If nobody can find the money to pay for the funeral than it will fall onto the public authorities to deal with. Who owns ashes? The starting position is as above, there is no property in a corpse. However, there is no case law authority about who owns ashes. It is open to argument that since a skill has been applied to the body, (i.e., it was cremated) the ashes are capable of being owned. The cremation authority has a duty to dispose of the ashes as requested by the person who applied for the cremation, and in the absence of such instruction to dispose of them as required under the Cremation (England and Wales) (Amendment) Regulations 2017/1238

How do you go about stopping a planned funeral? Well, if you can’t get agreement to make the changes then you will need to make an application to the court for an injunction. An injunction is where the court tells someone not to do something. It is a very serious matter to ignore injunctions and it can lead to finding yourself behind bars. If you want to make an application for an injunction you are likely going to need legal advice and representation. That won’t be cheap but there are a lot of moments in life worth more than money. Get in touch with a solicitor or even better, fill out my contact form and I will see if I can help.

Ash

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