The FCA – Transformation to Assertive Supervision
The death of a loved one is an incredibly sad and difficult time for any family, and in the vast majority of cases those closest to the deceased are able to arrange an appropriate “send-off” which gives everyone the opportunity to pay their respects and say goodbye. Unfortunately however, there may be situations where the relevant parties cannot agree on the funeral arrangements, or what should happen to the deceased’s body. This blog considers who is legally responsible for deciding what happens to the body and how the Court has approached disputes in recent cases.
The starting point is that no one can own a body as it is not considered “property” (save if the body has undergone a process which has given it value such as. embalming or being the subject of medical research but ordinarily this would not be the case). Although no one can own a body, there are specific individuals who are “responsible” for the body and can therefore take possession of it.
Where the deceased has left a will naming executors, they are the ones responsible for disposing of the body. If the deceased died intestate, or without naming executors, those who administer the estate (the individuals with priority – surviving spouse, children and so on) will have this responsibility. In the case of a deceased child, it is their parents. It is therefore important to note that the deceased’s next of kin or those considered closest to the deceased do not automatically have the right or responsibility to take possession of the body.
In many cases, the deceased’s will (or letter of wishes) will detail their funeral, burial or other wishes. These wishes are not legally binding but in most cases it is likely that they will be followed. Disputes most commonly arise where there are no wishes expressed, or no will at all (and therefore no guidance for making arrangements) but if there is a will disputes might still arise in one of the following circumstances:
Where there is a dispute, the parties can apply to the Court to make a determination. Although each case will turn on its own facts, the Court will consider the following factors:
The deceased’s wishes
In Anstey v Mundle  EWHC 1073 (Ch), the deceased had been born in Jamaica but came to the UK in the 1960s, last visiting Jamaica in 1998. The deceased’s will stated that he wished to be buried in Jamaica, next to his mother. A dispute arose between his two daughters as to where their father would be buried – one supported Jamaica, whereas the other questioned the validity of the will and her father’s capacity at the time of its execution. The Court attached significant weight to the deceased’s wish to be buried in Jamaica. The will appeared, on the face of it, to have been written by the deceased, and the presumption was that he had had capacity. The deceased had also discussed with a friend that he wished to be buried in Jamaica, and had been close to extended family who wished for him to be buried in Jamaica. It could not be said that he had more ties in England, and not wanting to visit a country in life did not undermine the conclusion that a person wanted to be buried there in death.
The deceased’s wishes were also the most persuasive factor in Jakimaviciut v HM Coroner for Westminster  10 WLUK 523. The two daughters of the deceased were in a dispute regarding their mother’s attachment to Lithuania and whether she should be buried there or in the UK, where she died. The Court accepted that the evidence pointed to her wanting to have her remains in Lithuania. For more information regarding Jakimaviciut, see our colleague, Kate Salter’s blog: Funeral fall-outs and body battles – Who is in charge?
The reasonable requirements and wishes of family and friends
In Y v Z  EWHC 4026 (Ch), the deceased had been brought to the UK by his mother in 2002. He had married his wife the same year in the UK and they had three children. All members of the family lived in London (including the deceased’s two brothers), save for the deceased’s father who remained in his country of birth. The deceased’s mother, father and brothers wished for him to be repatriated to his country of birth for burial according to local custom in their ancestral burial ground, whereas his widow, supported by the children, wished for him to be buried in London, close to their home. The Court decided that the deceased would be buried in London. The two oldest children had said that they wished to visit the grave regularly and a grave in the country of the deceased’s birth would be expensive and difficult for them to visit. All the parties lived in London, so they could all participate in the funeral arrangements and visit the grave as they wished easily, regularly and at minimal cost.
The Court was also mindful of the cultural factors at play in Y v Z. The deceased’s family had been born overseas and observed cultural traditions from their native country. However, the Court was influenced by the fact that the family had all chosen to become British citizens and the UK had been their home for 19 years. While there is no reported case in England which deals substantively with cultural factors in disputes of this kind, the Australian Court (which operates under a common law system similar to England) has indicated that regard will be had to “‘spiritual or cultural values’, even if the evidence as to the relevance of such considerations in a particular case may be conflicting.”
The place the deceased was most closely connected with
The deceased in Hartshorne v Gardner  EWHC B3 (Ch) had lived in Kington and his father wished for him to be buried there, but his mother wished him to be cremated in Worcester, where she lived. The Court concluded that the deceased’s life in Kington was an important consideration, such that he should be buried there. Kington was where his home, work, brother, fiancée and friends were based. He was brought up in Worcester but he had spent the last 8 years of his life in Kington and had close connections to the area. These factors outweighed the mother’s personal wishes and difficulties in visiting the grave.
Ensuring that the body is disposed of with respect and without delay
Delay in laying a deceased person to rest is against public policy, and it is essential that they receive a proper and respectful burial or cremation as soon as practicable after death. This is an extremely important consideration for the Court in all disputes of this kind.
If arrangements are already in place for burial and there is a dispute, in the first instance it might be necessary to apply for an injunction to prevent the burial pending further order of the Court. It is a criminal offence to prevent the burial of a deceased body or a lawful inquest, so an application to the Court would be the appropriate first step in an urgent situation. However, it is always worth considering the cost of pursuing this route – financial costs, as well as the long-term impact this could have on relationships within the family.
When disputes like this arise within families, it is usually at a time shortly after the deceased’s death, when parties are grieving the loss of their loved one and emotions are running high. In most cases, disagreements can be resolved without the need for Court proceedings, but it is important to take advice as soon as possible.
If you are facing a dispute, or would like further information, please contact a member of our Wills, Trusts and Inheritance Disputes team.
Liam Hurren is a trainee solicitor at Kingsley Napley and is currently in his fourth seat in the Criminal litigation team. Liam's previous seats were with the Dispute Resolution team; the Family and Divorce team, supporting them with all aspects of financial and private law children work; and the Private Client team.
Katherine Pymont joined Kingsley Napley’s Dispute Resolution team in September 2012. She has a broad spectrum of litigation experience with particular expertise in Wills, Trusts and Inheritance Disputes. Katherine had a previous career in the media. She trained at Kingsley Napley LLP.
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