Last requests

As a personal experience recently reminded me, planning a funeral can be a difficult and emotional task, involving a seemingly endless list of decisions. While in most cases the parties involved can reach an acceptable consensus, what happens when those who feel they are entitled to have a say in how the body is disposed of disagree strongly? Who is legally entitled to make that sensitive decision and what happens when there are no obvious next of kin?

Unless a corpse undergoes a process such as embalming or dissection, causing it to acquire a value in itself, there is no property in a dead body (Williams v Williams (1822)). This means no one can 'own' it and beneficiaries cannot claim rights over it, as it is not part of someone's estate.

Entitled by duty

However certain people are entitled to possess the body by virtue of their duty to dispose of it. Although if an inquest is needed, only a coroner may retain it until the necessary certificate of authorisation has been issued. It is a criminal offence to prevent a lawful inquest or the burial of a body, as it is for a person to fail in their duty of disposal.

Where a will appoints executors, they are responsible for disposing of the body. Upon intestacy, the duty falls on the person with priority to extract the grant under rule 22 of the Non-Contentious Probate Rules 1987.

Very rarely the deceased's wishes
about their own funeral arrangements can constitute the 'special circumstances', entitling the court under section 116 of the Senior Courts Act 1981, to pass over those with priority to a grant where it is also 'necessary and expedient' to do so (Borrows v HM Coroner for Preston [2008] EWHC 1387).

This follows from the article 8 right to respect for family life, and arguably article 9 (freedom of thought, conscience and religion) of the Human Rights Act 1998.

What the courts have made clear is that any rights or responsibilities the next of kin have as executor or administrator, stem from that role alone (Dobson & Ors v North Tyneside Health Authority and Anor [1996] EWCA Civ 1301).

They do not come from their relationship with the deceased, although parents of a deceased child do have a common law duty to bury him/her if they have the means. Where a child has been adopted, the adoptive parents have a better right than the natural parents, whose rights in turn exceed those of any foster parents.

There is also a common law duty of disposal on the householder on whose premises the body lies (this can include a hospital). Ultimately if no other arrangements are made, the local authority has a duty to bury any unclaimed remains.

Case study

The judge in Hartshorne v Gardner [2008] EWHC B3 (Ch) faced a dispute between the divorced parents of an adult child who died intestate. Having emphasised the court's overriding concern to ensure the body was disposed of with proper respect and decency, she identified various factors to be taken into account when deciding the burial site.

These included the wishes of the friends and family, the place the deceased was most closely connected with, the wishes of the deceased himself and practicalities such as transportation. Accordingly she concluded the son should be buried, as his father requested, in the town where he had lived for the last eight years of his life, rather than cremated and his ashes scattered in the place he grew up, and where his mother still lived.

Cases like these are tragic to read about and will, no doubt, continue to occur especially when death occurs unexpectedly and to the very young. These scenarios can be avoided by encouraging clients to discuss and make a note of their wishes, especially when professionals are appointed as the executors. Hopefully this will allow the funeral to be the start of a healing process and not a cause of further distress at an already difficult time. 

Ailsa Moorhouse is an associate at Penningtons