Stress and upset following a death in the family can occasionally lead to disputes on choices of burial, cremation and frequently location. A deceased’s Will may indicate a preference for burial or cremation, but where a deceased dies intestate (without a will), there is a list of individuals in apriority order who can take control of the deceased body and take out Letters of Administration.
Kay J in Williams v Williams (1882) ruled there can be no property in the dead body of a human.Control of a body is therefore governed by special rules. An entitlement to possession of a dead body for the most part lies with the person holding the duty to make arrangements for the disposal of the body.
The Personal Representatives (PR), being the person who has the role to administer an estate when a person has died, is the person first entitled to the body. Providing there is no dispute in identifying who the PR is, that person has the right and duty to make arrangements for the disposal of the body.Williams v Williams established that the deceased cannot nominate someone other than their PR to take control over the disposal of their body.
Dispute over the identity of PR’s
Where the identity of a PR cannot be agreed, e.g. where the validity of the Will is in dispute, resolving the dispute can take considerable time. Unless there is a good reason to postpone the disposal of a body, an application can be made to the court to determine who and the grounds upon which disposal of the body may occur with respect to the deceased and without unnecessary delay.
In Anstey –v- Mundle and Another (2016) the deceased died in England having originated from Jamaica. The Executors to his will disagreed about where the burial should take place, England or Jamaica. It was found the deceased had expressed a preference to be buried in Jamaica. The court order was not to direct burial in Jamaica, but to direct who had power and the duty to deal with the burial. The person selected was a party favouring burial in Jamaica.
In Hartshorne v Gardner (2008) the determined factors to be considered were:
The last of these was considered by the court to be the most important.
Appointment to appoint to administrator instead of person entitled
The courts have revisited the conflicted wishes of the deceased relations recently in Ganoun v Joshi (2020). The deceased, a Muslim, entered the UK from Algeria as an asylum seeker. He gave his name as Omar Djabali and his date of birth as 27th October 1989. His parents and siblings, who still live in Algeria, said he was born Lamine Ouabri on 27th October 1983. He remained in the UK and married Ms Joshi and was always known to the U.K. authorities as Omar Djabali.
The deceased died intestate on 15th September 2020.His widow was entitled to administer his estate. She arranged to have him buried in this country. His family wished him to be buried in Algeria. His mother applied to the court to be appointed as replacement administrator or for directions about the disposal of his body but was too late as the deceased was buried 30th September. The mother wished to exhume her son and repatriate his body.
The court determined there would be no declaration as to the “decency” of the burial as this would only serve to strengthen an argument to exhume the body. There would be a declaration that the deceased was known by more than one name which would assist the deceased family in obtaining a visa application to visit the grave and the widow was entitled to dispose of the deceased body. There was nothing improper about the burial and use of the deceased’s known name in the UK and her replacement was not appropriate.
A PR on a frolic of his own
Where a PR decides to dispose of a body in a way that is believed to be contrary to the deceased’s the way in which to challenge the PR’s choice is through an application under S116 of the Senior Courts Act 1981. The court may exercise a discretion and appoint an alternative PR.
A few reported decisions exist:
In Burrows v HM Coroner for Preston (2008) an order was made varying the order of priority to a grant. Given the cases special circumstances where the person in first priority was incapable of assuming responsibility, the deceased’s wishes should not be ignored.
In Ibuna v Arroyo (2012) it was doubted that human rights were relevant after death. Nevertheless, the court considered that the deceased’s wishes should be considered. An order was made appointing a joint administrator alongside the person who had priority.
From these cases is seems the courts will recognise and consider a deceased’s wishes and an application to the court may have merit where a PR decides for no good reason to disregard a deceased’s express wishes. Exceptionally in the case of Oldham Metropolitan Borough Council v Makin (2017) an Order was made under S116 of the Senior Courts Act but did not implement the deceased wishes on public interest grounds.
Orders during the deceased lifetimeIn the recent case of JS (A Child) (Disposal of Body; Prospective Orders) 2016 a 14 year old child with a terminal illness wished to be cryonically preserved in the hope that medical advances would enable her to be revived. Her mother supported her wishes. Her father by the time of hearing was prepared to support her, but subject to conditions which she found unacceptable. She was too young to make a will naming her PR and if she died intestate both parents would be entitled to seek a grant for letters of administration. The court ordered that the mother would have the sole right to letters of administration. The order did not prescribe what was to be done with the body as the court’s involvement is primarily concerned, not with the method of disposal, but the question of who should make the arrangements.
Moving the body out of the court’s jurisdictionThe decision of removing a body outside of England and Wales for disposal is ultimately for the person entitled to make the arrangements. The risk in this occurring is if the body is removed from the court’s jurisdiction it may be impossible for any future orders to be enforced.
CremationThe Cremation of (England and Wales) Regulations 2008 provide that the ashes shall be given to the person who arranged the cremation, or another nominated by them. If the ashes are deposited into an urn, given that there is no property in a human body, the urn becomes a chattel and is subject to the rules of property law.
If you have concerns or require advice in respect of a Will or contentious probate claim please contact our Contentious Wills & Probate Team who are available to help. Email us at email@example.com or contact us on 01708 229444 (Upminster Office), 01277 211755 (Brentwood Office) or 01708 511000 (Hornchurch Office).
This article was written by Kerry Hull, Associate in the Contested Wills & Probate Team at Pinney Talfourd LLP Solicitors. The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as of November 2020.