Disputes can arise as to who is responsible for the disposal of a body, especially when two or more people with equal standing disagree on the location of the disposal and/or whether the body should be buried or cremated.
Clearly following the death of a loved one this is an emotional period and often the expectations of the families and relatives do not correspond with the laws governing ashes and burials.
It is long established law that a corpse has no rights. For example, “it cannot be bought or sold, stolen or criminally damaged, seized by the deceased’s creditors as security for his debt and does not constitute goods and materials for the purposes of tax.”
Individuals often include within their Wills or codicils, directions as to how the Executors are to dispose of their corpse. In practice, if no dispute arises, corpses are often disposed of in accordance with the deceased’s wishes as stated in the will. However, where parties have different ideas as to the disposal of the corpse, due to a corpse not constituting property, it does not form part of the deceased’s Estate and therefore any wishes contained within a Will relating to the disposal, will be unenforceable.
It is understood that in England and Wales in excess of 65% of the population have not made a Will. This clearly can lead to the possibility of disputes regarding the disposal of a body as there may not be any record detailing the Deceased’s wishes.
Whilst it is not possible to have rights over a corpse, the law does acknowledge that there is a hierarchy of individuals who may dispose of a corpse.
If the deceased made a Will naming Executors, it is the Executor’s duties to dispose of the corpse. Where an individual has died without making a Will, the duty falls on the Personal Representative to dispose of the Estate. In addition to the above rules it is accepted that a parent of a child may dispose of their child’s body, provided they have sufficient means.
The power imposed upon an Executor or a Personal Representative is a moral and not a legal obligation concerning the disposal of a corpse and the court has been reluctant to interfere with Executor’s decisions as to burial unless “they are capricious, unreasonable or dishonestly made”.
There are numerous examples of conflicts arising between Executors/Personal Representatives regarding the disposal of a corpse; a few examples are listed below.
The father of the claimant passed away without leaving a Will. At the time the father passed away, the claimant was on a worldwide travelling expedition and the father’s long term partner obtained letters of administration and accordingly wished to dispose of the ashes at a holiday resort memorable to the father and her partner. The claimant, however, wished for the ashes to be disposed of at a location memorable to him. As there was no property in the corpse, and the claimant was not available at the time the grant of probate was obtained, he was unable to challenge the partner’s intention as it could not be shown that the personal representative’s decisions were “capricious, reasonable or dishonestly made”.
The deceased appointed his three adult children as Executors under his Will. Unfortunately the three adult children could not agree as to where their fathers ashes should be laid to rest and an order was sort by one of the children that the ashes should be divided between the parties with each Executor disposing of their one third share as they wished. After the matter proceeded through the Court this request was refused and it was accepted that it was not appropriate to divide the ashes contrary to the wishes of one Executor. The ashes accordingly were disposed of in accordance with the wishes of the majority of the Executors.
Divorced parents disputed as to where their deceased child’s ashes should be scattered. The father wished for the ashes to be scattered off the Welsh coast whilst the mother wished for the ashes to be inured in the Midlands. The Judge in this instance made an order that the ashes be disposed of in the Midlands as both parties had family in this area and this decision was in “justice and fairness to both sides”.
For more information or advice on who's entitled to the ashes, please contact Martin Oliver on 01926 880751.
