Burial Disputes: The Current Law And How It May Change

The Law Commission have recently announced, in December 2022, that “the rules and regulations that cover the disposal of a person’s body after they pass away are outdated and complex”, identifying the uncertainty surrounding the rules governing the disposal of a body being a contributory factor to legal disputes.

The law governing this area is currently being reviewed, starting with the identification of the specific issues that are going to be considered. Once this has been done, the Law Commission will set out their proposed next steps. This appears to be a positive change in this area of law, and it is hopeful that the rules will become clearer, to give certainty to future families who might find themselves in this position.

The current law relating to will disputes

Recent investigations have found that it is estimated that 3 in 4 people will experience a dispute relating to a will, probate, or inheritance during their lifetime. In particular, there has been a noticeable increase in burial disputes. Research from by a UK funeral plan provider in 2014 suggested that, on average 27% of all deaths led to a feud between family and friends, with 51% and 21% of these disagreements relating to differing views on funeral arrangements and final resting places respectfully.

Who controls the body after death?

 The case of Buchanan v Hilton established that there is no property in a dead body, though there is a common law duty to arrange for its proper disposal. This duty lies with the personal representatives of the deceased, thereby meaning that an executor appointed under a will is entitled to obtain possession of the body before the Grant of Probate has been extracted (Sharp v Lush (1879)). Where there is no executor appointed, that same duty falls upon the administrator, though they may not be able to do so before receipt of the Grant of Letters of Administration.

Therefore, if a person dies leaving a will, then the control over their body vests in that of their personal representatives. If the deceased died without a will, and there are no Personal Representatives appointed, then the person with control of the both is the person who has priority under the Intestacy Rules in accordance with Rule 22 of the Non-Contentious Probate Rules as follows:

• The surviving spouse
• Surviving children or their issue in case of any predeceased children
• The parents of the deceased
• Blood-related siblings or nieces and nephews in case of deceased siblings
• Half-siblings, or their issue in case of deceased half-siblings
• Grandparents
• Blood-related uncles and aunts or their issue
• Half-uncles or aunts or their issue
• The householder in whose property the Deceased died (Re: Stuart) and/or the person with actual possession of the body

In the absence of any of the above, S46 Public Health (Control of Disease) 1984 states that the local authority has a duty to bury or cremate the body of any body found dead in their area where no suitable arrangements for its disposal have been made. In relation to children, however, if the child is in the care of the local authority, the right reverts to the child’s natural or adopted parents (R v Gwynedd County Council ex parte B).

The only exceptions to the above rules are instances where bodies (or parts of bodies) have acquired different attributes “through the application of skill such as dissection or preservation techniques” (R v Kelly [1999]), or whereby a body, organs, or tissue have been donated for the purposes set out in Schedule 1 of the Human Tissue Act 2004. In these circumstances, a body is capable of being classified as property.

Setting out wishes in a will

Whilst it is incredibly common for a Testator to have outlined their wishes for burial/cremation in their will, that does not, unfortunately, guarantee that those wishes will be carried out.  Given that there is no property in a dead body it can therefore not be disposed of by will (Williams v Williams).

The common law duty to properly dispose of a body includes an obligation to ensure that disposal takes place within a reasonable period, taking into account ‘all relevant factors’. If the disposal is not arranged within a reasonable timeframe, then whoever has lawful possession of the body is entitled to make proper arrangements for its disposal.

Funeral Disputes

Rees v Hughes (1946) established that a Testator cannot dispose of their body by will, and therefore just as the personal representatives have the right to dispose of the body, they also have the right to decide how the body should be disposed of and the making of any funeral arrangements.

Once a personal representative has established such a right, their discretion in doing so will not be interfered with by the court unless they act unreasonably (Grandison v Nembhard) or unless the matter is in the public interest (Oldham Metropolitan Borough Council v Makin).

This means, therefore, that even if a Testator has indicated within their will their wishes to be buried/cremated, there is no obligation on their personal representative to abide by those wishes, though they should be taken into consideration (Re JS (A child) (Disposal of a Body: Protective Orders)).

Who controls ashes?

 In the first instance, cremation of a body is covered by statute, under the Cremation Act 1902 and 1952 and the associated Regulations.

An application for cremation must be made by either an executor or ‘near relative’ aged 16 or over under the Cremation (England and Wales) Regulations 2008. A ‘near relative’ is defined as a widow or surviving civil partner, a parent, child, or any other relative usually residing with the deceased. Any other person may make the application if they can establish that they are a proper person to make the application, and can provide a valid reason why the application is not being made by an executor or near relative.

Following cremation, the cremation authority either:

• Disposes of the ashes in accordance with the applicant’s instructions; or
• Where there are no instructions or the ashes not collected in accordance with those instructions, may dispose of the ashes by burying or scattering them.

In exceptional circumstances, the authority may release the ashes to somebody other than the applicant or their nominee.

With regards who has the final say over how ashes are dealt with, it is often suggested that the person with the duty to deal with the body also has the duty/right to deal with the ashes to ensure that the body is properly disposed of (Robinson v Pinegrove Memorial Park Ltd).

The matter of Leeburn [2004] held that ashes did not form part of the Deceased’s estate and therefore did not pass under the will. The process of cremation transforms the ashes into property and, instead, the executors hold the ashes as trustees for the “purpose of disposing or dealing with them in a way that seems to be appropriate” taking into consideration the deceased’s wishes in the will and the claims of relatives/others with an interest.

Conclusion

At this moment, this remains an emotive issue and once which has the potential to cause upset amongst both family members and friends of the deceased following their death.  Therefore it is incredibly important that the Testator has a discussion with their family/friends during their lifetime so that they can communicate their wishes to them. Although this is not strictly binding, it is the best way (pending any future reforms to the law) of ensuring that as many people as possible are made aware of their wishes, so as to minimise the risk of a dispute caused as a result of a disagreement as to what should happen following their death.