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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.
It is generally recognised that the Personal Representatives (PR) of the deceased have the first entitlement to the body. Providing there is no dispute over identifying who the PR is, that person has the right and duty to make arrangements for the disposal of the body. If no arrangements are made at all, it will fall to the local authority in the area that the person died to address disposal.
Williams v Williams established that the deceased cannot nominate someone other than their PR to take control over the disposal of their body.
Where the identity of a PR cannot be agreed, for example, where the validity of the Will is in dispute, resolving the dispute can take considerable time. If disposal cannot be agreed and unless there is a good reason to postpone the disposal of a body, an application can be made to the court under S116 of the Senior Courts Act 1981. This Act gives the court power to pass over the person with primary responsibility should it be necessary and appropriate to do so. In the alternative, the court can exercise its inherent jurisdiction.
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.
The court determined by reference to the earlier decision in Hartshorne v Gardner (2008) that factors to be considered were:
The last of these were considered by the court to be the most important. The court also considered where the deceased had the closest connection.
Where a PR decides to dispose of a body in a way that is believed to be contrary to the deceased's wishes it is understandable that disagreements may occur. The way in which to challenge the PR's choice is to make an application under S116 of the Senior Courts Act 1981. This section allows the court to exercise a discretion and appoint an alternative PR.
A number of reported decisions exist:
Buchanan v Milton (1999) – an Australian aborigine had relocated to the UK with his adoptive parents. He died intestate and the person entitled to take out a grant of letters of administration was his infant daughter. The court held that balancing the considerations, including the deceased's wishes, had not reached the threshold necessary to pass over the person entitled to a grant.
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.
The indication from these cases is that 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 those 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.
The decision to remove a body outside of England and Wales for disposal is ultimately for the person entitled to make the arrangements. The risk of this occurring is if the body is removed from the court's jurisdiction, it may be impossible for any future orders to be enforced. If an intention to remove a body out of the court's jurisdiction is the subject of a dispute an injunction can be applied for as occurred in Anstey v Mundle.
The 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 think you may have a claim for rectification of a Will, or are a beneficiary or executor that might be affected, the importance of taking prompt legal advice is paramount. We have an experienced and dedicated team of specialist contested Wills solicitors based in our offices across Essex and London. We have evening and weekend appointments available for clients that find it difficult to arrange meetings during working hours.