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Ilda de Sousa
In most cases, after the death of a loved one, family members and those close to the deceased come together to agree a fitting and respectful ‘send-off’ for the deceased, whether that involves a funeral, burial, cremation, memorial service or any other way of saying ‘goodbye’.
But what happens if the parties can’t agree on the funeral arrangements, or about what should happen to the deceased’s body? In many cases parties can look to the deceased’s will for clues about the deceased’s funeral or burial wishes, but those wishes are not binding. And what if the deceased hasn’t made a will? Or there is likely to be a dispute about the validity of a will, or there is uncertainty or inconsistency over what the deceased’s wishes were? This blog looks at who is legally entitled to decide what happens to the deceased’s body and to arrange a funeral.
The starting point is that nobody owns a body. It is not possible for a body to be gifted, or bought or sold, although a body may be donated for medicine or science. However, certain people have the right to dispose of a body, and it is that person who is entitled to possession of the body as well.
The right to possession starts from the moment of death and the order of priority is not always as people might expect. The concept of ‘next of kin’ means little when it comes to the right to possession. The starting point is that if the deceased’s body is infectious, or they have died from a notifiable disease, a hospital has the right to detain the body. Then the coroner has the right to take temporary possession of the body so that the cause of death can be determined. The body will then be released once the coroner’s examination has taken place.
If the deceased left a will, the named executor is entitled to take possession of the body for the purposes of lawfully disposing of the body. If the deceased did not make a will, the person who has priority on intestacy (the administrator) may take possession. Therefore it is the deceased’s personal representative or ‘PR’ (ie their executor or administrator) who is entitled to take possession of the deceased’s body.
Many people assume that the deceased’s surviving spouse, or child or sibling, has some entitlement to determine what should happen after the deceased’s death in terms of their burial or disposal. That is not the case if the deceased’s PR is someone different. In practice, in many cases the PR will work together with others close to the deceased, such as the deceased’s children or surviving spouses, to collaborate over the funeral and burial arrangements. But the PR has the right to have the final say over the arrangements and can overrule family members.
This can sometimes produce controversial results. For example, where the deceased is survived by a spouse but names another party, such as his cousin, as his executor in a will, the deceased’s spouse has no say over the funeral or disposal of the body. If the executor and spouse can’t agree, the executor’s decision takes precedence.
But what if there is a dispute over the validity of the deceased’s will which appoints the executor, or there are disagreements between PRs? In those cases, the parties can apply to the court to decide who is entitled to make the decision. This happened recently in the case of Lina Jakimaviciute V (1) HM Coroner for Westminster (2) Rasa Stanevicience , in which the court had to determine which of the deceased’s two daughters was entitled to the possession of their mother’s body.
Briefly, the deceased (D) had moved to England from Lithuania in 1995, but returned to Lithuania numerous times over the years and kept a valid Lithuanian passport. D made a will in July 2017 after being diagnosed with cancer, appointing her daughter Rasa as executrix of her estate. D died in September 2018 and Rasa made funeral arrangements to have D buried in Lithuania. D’s other daughter, Lina, applied for and was granted an injunction preventing the coroner from releasing D’s body to Rasa, on the grounds that D had wanted to be cremated and buried in the UK, not Lithuania. Lina also claimed that D’s will was invalid for lack of capacity, and that she had died intestate.
The court was asked to decide the issue of to whom the body should be released (not the substantive claim over the validity of the will). The court found that there was no good evidence to suggest that the will should be challenged, and that there was plenty of evidence supporting D’s wish to be returned to Lithuania after her death. The evidence pointed to D wanting to have her remains buried in Lithuania and there was no good reason for going against D’s wishes. Further, the most important consideration was to dispose of the body decently and without delay, and therefore it was ordered that D’s body should be released to Rasa.
When family disputes over funeral arrangements arise, it is often at a time shortly after the deceased’s death, when parties are grieving the loss of their loved one and emotions are running high. Most often, disputes can be resolved without recourse to the courts, so if you need assistance with a dispute relating to a funeral or burial, we may be able to help.
Kate Salter is a Senior Associate in the Dispute Resolution team. Kate specialises in wills, trusts and inheritance disputes, she regularly acts for individuals in bringing and defending claims against estates, including claims for lack of capacity, want of knowledge and approval and undue influence.
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