Funeral Arrangements & Burial Disputes

It’s not uncommon for families to fall out over funeral arrangements or possession of a loved one’s ashes. So, who has an ultimate say, and what can you do?

The Law

Legally, a deceased person is not property – no one owns a body. Therefore, a body can’t be gifted or disposed of in a Will and can’t be bought or sold. Usually, people set down their funeral wishes in their Will. However, those wishes aren’t mandatory. In the eyes of the law, a Will deals with the disposal of property, and since a body is not property, the deceased person’s wishes are not legally binding or capable of being enforced.

Who Decides About Funeral Arrangements?

Most people assume that the “next of kin” have an inalienable right to decide on funeral arrangements. However, the law doesn’t give express possession rights over the body. Still, it imposes responsibilities on a hierarchy of people with the right to decide funeral arrangements.

Funeral Wishes in A Will

If there’s a Will, the responsibility falls to the Executor (s) or, failing that, to residuary beneficiaries. Whilst funeral wishes set out in a Will are not legally binding, the Executor (s) follow the deceased’s instructions and usually involve the deceased’s family when deciding on funeral arrangements to avoid conflict.

Without a Will

However, if a person dies without leaving a Will, the order of priority is as follows:

The hospital has the right to hold the body if it is infectious
The coroner is next in line so that they can establish the cause of death
If there is a Will, the next person is the named Executor
If there is no Will, then priority is based on the Intestacy rules: Surviving spouse / Children / Parents /Siblings
If no one is willing to accept responsibility, the local authority where the person died will decide.

Common Burial Disputes

Arguments often start where several people share responsibility for deciding. The most common disagreements centre on the following:

Cremation or burial
Funeral location or date
Lack of communication about funeral arrangements

When a funeral dispute escalates, and no one agrees, the next step is for the court to intervene. However, this route frequently causes irreparable family rifts, so only consider it when there are no alternatives!

Court intervention

The court can intervene and has the power to give directions in burial disputes under the following:

Inherent Jurisdiction: as in the case of Oldham Metropolitan Borough Council v Makin & Ors [2017] EWHC 2543, which dealt with the disposal of Moors murderer, Ian Brady’s ashes (disposed of at sea against his wishes).

Senior Courts Act 1981 (section 116) gives the court power to appoint an administrator who can decide.

Civil Procedure Rules (part 64).

The court considers:

deceased’s wishes
reasonable requests from grieving friends and family
place the deceased is most connected with; and
arrangements are made respectfully and without delay (often considered the “overriding factor”).

Our Advice

Naturally, each case is different. But when funeral disputes arise – whatever the issue – take steps to resolve arguments as quickly as possible. As with any disagreement, several approaches can work, including formal Mediation, which is often an effective and cheaper option.

Arguments frequently erupt immediately after a death when emotions are running high. But remember, it’s possible to resolve disputes without involving the courts. So, if you need advice, contact us without delay. We’re here to help.

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.