Decisions over rights of a deceased body


Following the death of a family member there can be disputes over decisions on the funeral. Contentious probate expert Kerry Hull explains.

More often these arguments can be whether the deceased should be buried or cremated where the deceased has previously given no clear indication of a preference. However, on occasions such disputes can go even deeper.

The personal representatives of a deceased are primarily responsible for the disposal of a body. Their appointment and duties arise normally through the naming and appointment in the deceased’s will. If there is no will it will be the person who is entitled to letters of administration.

However, S116 of the Senior Courts Act 1981 gives the court power, in special circumstances, to pass over the person with primary responsibility, should it be necessary and appropriate to do so.


S116 of the Senior Courts Act 1981 was used in a recent case when the immediate family members were unable to agree where the deceased body should be buried. Having been born in Jamaica, but having lived and worked in the UK for many years the deceased had expressed a wish to be buried beside his mother in Jamaica. A will (the validity of which was disputed) appointed two of his daughters as Executors and set out the same wish. Two other daughters objected, believing the deceased wished to be buried in the UK. At an injunction hearing the court determined to whom letters of administration should be granted solely for the purpose of disposal of the body only.

The Judge determined that the court had jurisdiction to direct who had the right and duty to bury the deceased. It was unclear if the power under S116 SCA 1981 enabled the court to choose among a group that was equally entitled. The Judge therefore settled the matter upon the courts inherent jurisdiction applying relevant criteria identified in an earlier case of Hartshorne –v- Gardner (2008), such criteria being:

  • The deceased’s wishes
  • Reasonable requirements and wishes of the family
  • Place where the deceased was most closely connected
  • That the body was disposed of with all proper respect and decency, and without delay.

It was held the deceased should be buried in Jamaica. Greater weight was not given to the deceased’s children over extended family members. Concerns of the daughters who wished to have an English burial could be addressed if the body had not been buried abroad by a particular date.

Implications on future cases 

Each case is likely to be determined upon its own particular facts but the courts approach will be to apply the recognised criteria of the earlier decisions and importantly to preserve a sense a dignity for the deceased and to ensure that any burial is dealt with as soon as reasonably practicable.

Pinney Talfourd have acted in the High Court for a wife whose husband died suddenly without a will. The wife was primarily entitled to arrange the funeral, but the deceased parents applied for an injunction to stop the funeral so they could take the body to Africa for burial. In this case, the parents could not establish special circumstances.


If you would like more information on any contentios issues wih regard to probate, wills and estate administration please contact our Contentious Probate Department on 01708 229444.

This article was written by Kerry Hull, Senior Associate at Pinney Talfourd 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 at August 2016.


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