The Tax, Trust and Probate Team at Rawlison Butler LLP, Solicitors in Horsham, examine some of the issues, and highlight some interesting facts for those seeking to set out their wishes.
When you are writing your Will, and thinking about what to do with your assets,, your Solicitor will usually ask whether you have any particular views on your funeral Whilst it is not an easy topic of conversation with your family, when you are considering your Will is the ideal time to address the issue.
After a person dies, one issue that can cause dreadful problems for families is the funeral - from arguing about whether to have a cremation or a burial, what will happen to the ashes etc, funerals can cause huge problems for those left behind when your own wishes have not been made clear.
Legally, a person cannot own a dead body. Whilst this may seem a strange concept, it is a principle which dates back almost 200 years. The result of this is that instructions for a burial set out in a Will have been held in one particular court case to be not legally binding However, this rule has been negated by the Human Rights Act 1998, Articles 8 and 9, dealing with respect for family life and freedom of conscience, thought and religion. In effect, a person’s expressed wishes should be followed. Where no wishes have been expressed, then the personal representatives can decide instead. There is a specific exception in that a person may donate their body, or certain parts of it, for medical or scientific use. Further, a person regarded as having the lawful custody of a dead body (such as a hospital authority) can deal with it in that same way, by donating all or part of it for medical or scientific research, provided they have no reason to believe the deceased had objected during their lifetime, nor that any surviving relatives would object.
The crucial question, therefore, is who is entitled to decide on how to deal with the funeral? The personal representatives, or executors, have the prime responsibility for dealing with the body and therefore, they have priority over family members in these decisions. This can be an unpleasant surprise for some family members who find this out only after their closest relative has passed away. If there is no Will, then it is the person with the prime entitlement under the intestacy rules (the rules governing the disposal of a person’s estate if they die without a Will), who will have that primary responsibility.
Parents of a child have a positive duty to arrange a funeral, and in an argument between natural parents and adoptive parents, the views of the adoptive parents would take priority.
In the event of a dispute over the identity of the personal representative, the person with ‘lawful possession’ of the body (such as the person in whose household an individual died) may arrange the funeral. This can easily occur if, for example, there is to be a legal challenge to the validity of a Will. In such instances, an NHS Trust where a person died, could be required to arrange the funeral, although they are unlikely to do so without seeking the approval of a Court. In the event of a body being “unclaimed”, then the local authority has the duty to arrange the funeral.
Disputes between people who have an equal right can cause the greatest of problems; and the courts can be placed in an unenviable position, with little guidance from case law. In an extreme case the dispute became so bitter, and the parties so entrenched, that the deceased’s ashes were divided in two, and the two children disposed of their “share” as they saw fit.
The actual scattering of ashes is not subject to such complex regulation. They are regarded as sterile, due to the high temperature involved, and as such there are no public health issues restricting disposal in a public place, although local bye-laws must be observed where they exist. Generally, a person looking to scatter ashes would be advised to do so in such a manner as they are unlikely to cause injury to another person.
In conclusion, we would recommend that it is crucial to consider what should happen to your body when you pass away. Even if you have no views, it may be wise to identify the person whose wishes should be followed. This can avoid costly, and lengthy court proceedings. In one case, a funeral had to be delayed for over 6 months whilst the family fought over how the funeral was to take place. A funeral service itself is seen by many as a crucial part of coping with bereavement and such delays as can be caused by arguments over the funeral can only delay the healing process.
For more information on this or any other similar issue, please contact Digby Armstrong by emailing Digby or by calling him on 08450 990045, or speak to your usual contact in the Tax, Trust and Probate Team.
This document is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from taking any action as a result of the contents of this document.