It is not uncommon for a dispute to arise over a funeral and the rights to a body. Over half a million people die each year in England and Wales with 581,363 deaths registered in England and Wales in 2023.
Following the death of a loved one emotions are naturally running high and with the family structure becoming ever more complex and decisions to be made over where the deceased will be laid to rest and whether they are to be buried or cremated (and even then which type of cremation should take place) that disputes arise is, perhaps, not surprising.
Who makes the Decisions?
It is well-established that there are no rights of ownership in a body following death. As Baroness Hale stated in Buchanan v Milton:
"There is not right of ownership in a dead body. However, there is a duty at common law to arrange for its proper disposal."
If there is no ownership in the deceased this then raises the question who (if anyone) has the duty to arrange for the "proper disposal".
In the absence of a Court Order to the contrary, if the deceased left a Will then the duty to dispose of the body will fall to the executor who will have a right to possession of the body for the purpose of carrying out that duty.
If the deceased died without a Will (and intestate) then the duty will fall on the person(s) who has priority on intestacy.
Ultimately if there are no close relatives or anyone willing to assume responsibility the duty falls to the local authority.
What can the Court do?
It is not difficult to see how dispute arises. One can easily imagine a scenario where the deceased has children from a first marriage and then gets divorced and remarries and starts a new family. On death the children from the first marriage may have a particular view on the funeral arrangements that are different to those of the children from the later marriage. In these or similar circumstances what can be done?
The usual position is that personal representative has the final say even where others object but where a dispute has arisen and parties cannot agree it is possible to make an application to the Court pursuant to section 116 of the Senior Courts Act 1981 to seek a grant for the limited purpose of having authority to make arrangements.
It is not unusual for these types of disputes to also give rise to an earlier application for injunctive relief preserving the position pending a decision.
In making its decision as regards the grant the Court will consider, amongst other things, the deceased's wishes, the wishes of the family and the location the deceased was mostly closely connected to.
Practical Steps to avoid Disputes
It may not be possibly to completely eradicate the possibility of disputes and especially in circumstances where the dispute arises after your death but there are certain steps that can be taken to try to mitigate the possibility.
For example, although it is not legally binding, if you have a preference it would be sensible to set out your wishes clearly in your Will or in a separate letter (known as a Letter of Wishes). As set out above, if a dispute does arise one of the factors the Court will take into account will be the deceased's wishes.
If you have left a Will, it is also important to think carefully about who you appoint as executor.
The careful appointment of an executor cannot be understated and if you want your wishes to be honoured it would be sensible to consider appointing somebody who is likely to give effect to these.
Essentially communication is key and having open and frank conversations early on to make your wishes and the reasons known to your loved ones may assist in reducing the potential for a dispute later on.
What to do if a Dispute Arises
Disputes of this nature are, not unnaturally, emotionally charged and if a dispute arises following the death of a loved one, as a first step parties should consider trying to reach a negotiated solution whether this be through mediation or otherwise. Court proceedings may sometimes be inevitable but should be approached as a last resort.
How Colman Coyle can assist
At Colman Coyle we have the expertise to help resolve these (or similar) sorts of disputes and we have considerable experience of mediations having participated in a very large number of mediations. The vast majority have resulted in either an immediate settlement or have contributed to a settlement taking place a little later.
If you are currently involved in a dispute or if you are looking to try to address these issues beforehand by preparing a Will you should not hesitate to contact a member of our experienced Wills, Probate and Trust or our Wills and Estate Dispute departments.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
