Disputes Over Burial And Cremation Following The Death Of A Loved One

Unfortunately, it is not uncommon for disputes to arise as to who has the right to make decisions as to funeral arrangements and burial or cremation of loved ones when they pass away.

This can create a great difficulty for third parties funeral directors, hospitals, local authorities and coroners when parties can’t agree and try to freeze one another out over decisions.

If the matter goes to court, it is rare that a person other than those best entitled to a ‘Grant’ of Probate or Letters of Administration will be given permission to deal with the funeral arrangements and the disposal of the body. It is difficult for third parties to make the decision as to who is best entitled especially when litigation is threatened.

Often competing parties will have the same rights such as two executors or say three children where there is no Will. It may be that even if there is a Will it is being challenged and the executors’ authority is being called into question.

The procedure for pursuing any claim depends on the claimants position. If they are then ‘best’ person to obtain a ‘Grant’ then the procedure is for a declaration that they are entitled to possession of the body and an injunction requiring a third party to deliver the body up.

Where they are not the ‘best’ person, a claim would need to be made for a Grant of Letters of Administration limited under s116 of the Senior Courts Act 1981.

The costs of taking court action can be very high and the losing party may have to pay the cost or as the court decides.

With the benefit of hindsight, it is always best that funeral arrangements and wishes be written out clearly before death – either in a Will or side letter or by pre-arranged funeral plans.

If you wish to discuss any of the matters raised please contact Curtis Parkinson on 0115 9647740 or e-mail law@curtisparkinson.com.

Please note that all views, comments or opinions expressed are for information only and do not constitute and should not be interpreted as being comprehensive or as giving legal advice. No one should seek to rely or act upon, or refrain from acting upon, the views, comments or opinions expressed herein without first obtaining specialist, professional or independent advice. While every effort has been made to ensure accuracy, Curtis Parkinson cannot be held liable for any errors, omissions or inaccuracies.

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