Dead bodies and exhumations are the focus of Chris Belcher's attention in his Halloween-themed blog

With Halloween just around the corner, I hope readers will excuse my focus on some recent cases surrounding funerals and dead bodies.

This particularly ghoulish subject has even made it into the national press, with the Telegraph reporting earlier this month on a case heard in the Consistory Court (a rare occurrence in itself I should think).

Questions over the disposal of a body and the law of exhumation have also been debated in the High Court and Court of Appeal in recent months.

Legal maxims

My own experience of such cases is limited. However, I do recall two maxims of law which are well settled: first, that there is no property in a body; and, second, that it is an executor’s duty to bury the deceased’s body.

The law which states that an executor has a duty to dispose of the body dates back to the mid-1700s, and has been endorsed in many cases since. Despite the fact that there is no property in a body, the executors who have a duty to dispose of the body may apply for an injunction requiring the delivery of the body up to them to enable them to perform that duty.

This is fine where there are executors properly appointed by a valid will, but can cause difficulties if the deceased was intestate (an administrator’s rights only subsisting from the date letters of administration are granted), or where there is a dispute about the validity of the will.

And what in all this is the legal effect of the deceased’s own wishes as to the disposal of his body?

Let us assume that a deceased left a valid will in which his wish to be cremated is made very clear. The common law position seemed to be quite settled: while the executors are entitled to take account of the deceased’s wishes, they are not bound to give effect to them (see Williams v Williams (1882) 20 Ch D 659). Since there is no property in a body, directions as to the disposal of a body cannot be treated as a bequest of property, and therefore do not give enforceable rights to the person to whom they are addressed.

The case of Burrows v Preston Coroner [2008] EWHC 1387 (QB) cast some doubt on this. In that case it was successfully argued that the right to respect for private life conferred on the deceased by the Human Rights Act 1998 (the article 8 right under the European Convention) extended beyond his death to cover matters relating to his funeral and the disposal of his body.

The Burrows decision has this year been criticised in Ibuna v Arroyo [2012] EWHC 428 (Ch), a case which considered the disposal of the body of a Philippine congressman who died in the UK. There, the judge concluded that any rights conferred by the Human Rights Act could not subsist post-mortem.

So until this question is decided by a higher court, the position is unclear. At best we can advise testators to be as clear and precise in their funeral wishes as possible, and ideally to make sure their wishes are known by family and executors before those wishes have to be put into effect.

Last wishes

The recent story in the Telegraph(www.telegraph.co.uk/news/9600190/Death-did-them-part-church-refuses-right-for-couple-to-be-buried-together.html) related not to funeral wishes, but to a request by a family for an exhumation. Mr Corry had been buried in Southern Cemetery, Manchester following his death some 19 years ago, but his children wanted to have his remains exhumed to be re-buried at Mill Lane Cemetery alongside his widow (their mother), who had died in 2011.

The Corry children argued that Mrs Corry had never liked visiting her husband’s grave at Southern Cemetery, which they described as a “bleak and dangerous place to visit”. She had always hoped that after her death her husband’s remains could be buried with her.

Sadly for the family, the Consistory Court found that while it had sympathy with the family, the case was not exceptional enough to depart from the principle that a Christian burial should be final. Mr & Mrs Corry will forever lie apart.

However, there seems once again to be some inconsistency in the law. Earlier in the year, the Court of Appeal also considered an exhumation case and, again against the wishes of the deceased’s nearest relative, held that a body could be exhumed and re-buried (R (on the application of Rudewicz) v Secretary of State for Justice [2012] EWCA Civ 499). In this very particular case, the Home Secretary’s decision to permit exhumation was challenged by way of judicial review.

Following the de-consecration of Father Jarzebowski’s burial site and its sale to a commercial developer, his religious Order, the Marian Fathers, supported by the local bishop, wanted his body moved to be near to his fellow Marian priests at a publicly accessible grave.

His relative, Ms Rudewicz, argued that a Christian burial should be final – as was concluded in the Corry case – and that the exhumation would breach her human rights under article 8 of the ECHR.

The Court of Appeal allowed the exhumation. In judicial review terms, the decision of the Secretary of State had not been irrational or disproportionate. It also concluded that on the facts, Ms Rudewicz’s human rights would not be infringed by the exhumation.

In practice, we may not come across these sorts of cases often, but it is perhaps not uncommon to be faced with family members who, at a time of grief, disagree about a proposed funeral.

Where family members object to the course of action being taken by the executors, there may be a remedy available to them under section 116 of the Senior Courts Act 1981 under which an administrator may be appointed for the sole purpose of disposing of a body, even if he is not entitled to be an executor or administrator. There must be special circumstances, and it must be necessary and expedient for the personal representative to be replaced in this way, but for some families, that may prove the only way to carry out a loved one’s best wishes.

And on that note, Happy Halloween!

Chris Belcher is a partner and head of landed estates at Mills & Reeve and can be contacted on chris.belcher@mills-reeve.com. Follow Chris on Twitter @PC_Lawyer