It may be a rare occurrence, but an occurrence that’s increasing given the nature of complex family dynamics, but when a burial dispute arises, our team have the skills, resources, and experience to help our clients achieve a speedy and satisfactory resolution, allowing the deceased to be laid to rest. In this our second 'On The Case', Josh Proud, one of our litigation experts, explains why your burial wishes may not be carried out as per your wishes, and family disputes can rise resulting in the need for legal intervention.
Making funeral arrangements for a loved one can be very distressing, particularly if it becomes subject to a disagreement. With familial relationships being more complex than ever and burial disputes becoming ever more common, obtaining legal clarity can be key to ensuring that your loved one’s funeral proceeds when and how it should.
Who can decide what happens to my body when I die?
Often, people will leave instructions in their Will as to the nature of their funeral arrangements. Unfortunately, even if a person leaves a Will with very specific funeral requests, disputes can still arise.
"it is not possible to make a legally binding decision
regarding one’s own funeral arrangements"
Except for certain rules that apply under the Human Tissue Act 2004 relating to donating one’s body to be used for medical research, education and organ donation, it is not possible to make a legally binding decision regarding one’s own funeral arrangements. The reason for this is that the common law position is that a person has no property in his or her body after death, meaning they cannot exercise control over how it is disposed of (Williams v Williams (1982) 20 Ch D 659). So, who can decide?
Who has responsibility for the body and funeral arrangements?
A person’s executors (or administrators if there is no Will) are under a duty to dispose of the body and thus have a right to its custody and possession until it is disposed of. Primarily, an executor will make all the funeral arrangements as the cost of this will be paid for by the estate. That said, the executor can, and often should, allow funeral arrangements to be made by someone else where a) they are willing to take on this responsibility and b) it is more appropriate. This is often the case where someone appoints a professional executor, such as a solicitor, to deal with their estate, but leaves behind family members who would like to make the funeral arrangements themselves, such as a spouse or civil partner for example.
"the person in lawful possession of the body may, where a dispute arises,
make the decision as to how the body is disposed of"
We should caveat the above by stating that when a person dies in a hospital or in another institution, such as a prison, or while in the armed forces or in rented premises, the person in lawful possession of the body may, where a dispute arises, make the decision as to how the body is disposed of. In practice, this will usually involve an application to the court for directions as to who the body should be released to, although it can include carrying out the funeral directly. In cases of unclaimed bodies, the local authority has a duty to bury the body.
In cases where the person, or people responsible for disposal of the body are unlikely to carry out their duty properly, it is possible to seek to challenge their right to custody of the body.
Who has responsibility for the body and funeral arrangements?
The general consensus is that the most appropriate means of seeking the court’s assistance in resolving these disputes is to apply to the court for displacement of the executor or administrator under Section 116 Senior Courts Act 1981. This section permits the displacement of persons who would normally have the duty and right to dispose of a body if, by reason of special circumstances, it appears to the High Court necessary or expedient to appoint some other person as administrator.
These applications must be made under Part 8, with a statement in support which includes:
- Details of the deceased and any will, with a copy of the will exhibited
- Details of the person entitled to a grant under the Will or I the case of intestacy those entitled in priority to a grant under rule 20 or 22 of the Non-Contentious Probate Rules 1987;
- Reasons for the application;
- Any other relevant facts; and
- Details of the proposed limitation, if a limited grant is applied for.
Applications have also been made under Part 64 of the civil procedure rules for directions regarding the funerals or applications for the court to use its inherent jurisdiction, however these are far less common and are not favoured by the court.
What does the Court takes into account and the European Convention on Human Rights?
When deciding whether or not to exercise its power under Section 116, the court will consider the following:
- the deceased’s wishes;
- the reasonable requirements and wishes of family and friends who are left behind;
- the place the deceased was most closely connected with; and
- ensuring that the body is disposed of with respect and without delay.
In addition to the above, there are conflicting views as to whether a dispute involving a burial engages the rights that we currently enjoy under the European Convention of Human Rights (ECHR). In most applicable cases, the courts are chiefly concerned with Article 8, and occasionally and to a lessor extent, Article 9 of ECHR.
Article 8 sets out one’s right to a private and family life, while Article 9 bestows a right to freedom of thought, conscience and religion.
What should I do if a Burial Dispute arises?
All in all, burial disputes remain a complex area and given that they often require immediate action to address, its important to seek legal advice without delay.
Here at Thornton Jones Solicitors we have a specialist team who can assist you and guide you through the process of dealing with a burial dispute. To find out more call us for a free initial consultation at any of our four Yorkshire based offices.
Call us to discuss further and to make an appointment at any of our four Yorkshire based offices.
Solicitors in Wakefield - Call 01924 290 029
Solicitors in Garforth - Call 0113 246 4423
Solicitors in Ossett - Call 01924 586 466
Solicitors in Sherburn in Elmet - Call 01977 350 500
Thornton Jones Solicitors are a firm of Solicitors in Wakefield. We have a wealth of experience in dispute resolution including burial disputes, boundary disputes, landlord matters, tenant matters and settlement agreements. We also have offices in Garforth, Ossett and Sherburn in Elmet so if you are looking for a Solicitor in Garforth or a Solicitor in Sherburn in Elmet or a Solicitor in Ossett then call us to discuss your matter and to book an appointment.
About Josh Proud
Josh has acted for both claimant and defendant clients in all manner of civil cases since 2014. During this time, Josh has developed expertise in many different areas, but with a particular emphasis towards contentious probate.
Josh regularly acts for executors, beneficiaries and those who have been excluded from Wills or who have otherwise not benefited from an estate when expecting to do so.
While an accomplished litigator, Josh is also a firm believer in the benefits of' Alternative Dispute Resolution' and believes that taking a creative approach to resolving cases can often yield the best results for his clients.
Away from the office, Josh loves skiing, cannoning, and motorbiking, much to the dismay of his long-suffering family. He has, however, promised to play more golf.