Dispute Over Burial, Ashes and Funeral Disputes

What can you do if there's a dispute over burial, ashes and funeral disputes?

Disagreements between family members over burial and funeral plans are not uncommon.

So, who has the ultimate say? 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. 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?

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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.

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.
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 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.

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Trudi is an Associate at Mullis & Peake, with extensive experience in the Wills and Probate field.

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