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27 July 2017

When disputes arise over burial and funeral plans

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    • Contested Wills and Financial Provision
    • Disputed Wills & Estates
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27 July 2017

When disputes arise over burial and funeral plans

Sadly it is not uncommon for disagreements to arise between family members over burial and funeral plans of loved ones. Indeed it may be that up to a quarter of deaths in the UK lead to family disputes, and over a fifth of these disputes concern the final resting place of the deceased’s ashes or coffin. This may reflect the number of people who have potentially competing claims.

So, who has the ultimate say? Is it the person who paid for the funeral or the next of kin? The personal representative or is it the deceased in their will?  

Nobody owns a body – there is no property in a dead body. The law does however impose responsibilities on certain groups of people who are under a duty to dispose of the body and have a right to custody and possession of it. Many would consider that the next of kin, a surviving spouse or partner, or other close family, would have first right, but that’s not necessarily the case.  

Contrary to common belief, any directions or wishes set out in a deceased’s will regarding their funeral arrangements are not binding and are, in fact, unenforceable in law. This long held view needs to be placed in the context of the Human Rights Act 1998 (HRA) and in particular:

  1. The right to respect family life; and

  2. The freedom of thought, conscious and religion.

There have been a few challenges under HRA and the Court has now given guidance on what is of key importance. This includes the deceased’s wishes, as well as the wishes of family and friends, the place the deceased was most closely connected with, and the practicalities of arranging the funeral.

The law provides a hierarchy of people who will have the right to determine the mode and place of burial. The hierarchy differs depending on whether the deceased made a will. When there is a will, the responsibility falls to the executors.  

If the deceased did not leave a will it is the person who has priority on intestacy. The difficulty is that two thirds of people die without a Will. In that case, the representative rights rest with those who take a grant of Letters of Administration. This can often lead to disputes between those with an equal entitlement to the grant. 

If the deceased has no living relatives then any person having a beneficial interest in the estate will be next in line. 

In carrying out the duty of burial, the person responsible, will take possession of the body as trustee and can dispose of it in a way that seems to them as being appropriate having regard to any directions in the deceased’s will, claims of relatives and provided the disposal itself is legal. However, obligations to follow such wishes are moral rather than legal and they can act contrary those wishes. That said, the fact that an executor or administrator is entitled to possession of a body does not mean that they will arrange the funeral without consultation.

Executors (especially professional executors) often delegate responsibility for arranging a funeral to family.

Unfortunately funeral disputes like so many family disputes are often complex, and cannot simply be resolved. In a situation of conflict, the courts are reluctant to interfere with executors or personal representatives’ decisions as to burial unless they are capricious, unreasonable or dishonest. 

Where there is a dispute  and compromise cannot be reached, or if a will is subject to challenge, application may be made to the courts. This will inevitably lead to delay in the burial or cremation and can create very difficult situations that can be costly and upsetting to resolve.


PTAIT_20150514_0888

Martyn Trenerry

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Expert Commentary

Martyn Trenerry, Contested Wills and Financial Provisions specialist at Mullis & Peake LLP, said:

"It all comes down to careful planning and, wherever possible, communicating your decision to family, to try and avoid potential conflict or misunderstanding.  Ideally you should certainly get specialist advice, to be sure that your plans will not cause problems for loved ones after your death down the line.  By doing so and documenting you wishes means there is clear evidence of what you intended to do if a will is challenged at a later date.”

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