Aquamation - What Is It and What Are the Key Legal Considerations?

This article has been co authored with Nicola Philipson TEP (Parklane Plowden Chambers).

Dealing with the death of a loved one is an emotional experience at the best of times but is particularly difficult when family members fall out over how to deal with the body.  As the public consciousness turns towards environmental issues, we ask: is the increasing trend in ‘green burials’, and in particular the process of aquamation, the start of a whole new range of family disputes, and what can executors and beneficiaries do about it? 

What is Aquamation? 

Cremation in water is known by many names: Aquamation, Resomation, alkaline hydrolysis, and bio cremation.

Resomation and Aquamation are brand names, created by the companies who have developed and pioneered the technology. Resomation is the most widely adopted technology for water cremation in the world to date. The main difference is the amount of time each takes, Resomation takes four hours, whereas Aquamation can take around 14 hours.

The body is placed in a large chamber with a mixture of hot water and an alkaline chemical.  The pressure in the chamber stops the water from boiling but temperatures can reach up to 160 degrees.  The combination of the water, heat and chemicals means that the tissues and fats in the body dissolve.  The bones are then left which can be powdered and returned to relatives like ashes would be.

Why would someone choose water cremation?

Archbishop Desmond Tutu died at 90 years old on 26 December 2021.  He requested a water cremation because of the eco-friendly nature in comparison to a flame cremation. According to UK-based firm Resomation, water cremation uses five times less energy than a flame cremation and reduces a funeral’s emissions of greenhouse gases by about 35%.

With a water cremation the body is placed directly into the water chamber.  This avoids the need for a coffin which is usually made of natural wood resources and, if buried, takes up land space and takes a long time to decompose.

Is water cremation available in the UK? 

There are no laws preventing water cremation in the UK, however the process requires specific facilities which cost roughly over £300,000 to install.  Currently, it appears to the writers that councils and cremation services based in the UK have not purchased any such facility, but it is expected that private clinics offering this service will be arriving in the UK in the coming months and years. 

How much will a water cremation cost?

In the UK, it costs approximately £1,600 for a direct flame cremation, and about £4,000 for a flame cremation with a simple funeral service.  It has been estimated that in the UK a water cremation could be priced within this same region – however, if being aquamated requires transport abroad, then the costs are likely to be considerable. 

Disposal of the body: the law and how Aquamation fits within it 

There is no right of ownership in a dead body. However, there is a duty at common law to arrange for its proper disposal. This duty falls primarily upon the personal representatives of the deceased (see Williams v. Williams (1881) 20 Ch. 659; Rees v. Hughes [1946] K.B. 517). An executor appointed by will is entitled to obtain possession of the body for that purpose (see Sharp v. Lush (1879) 10 Ch. 468 at 472; Dobson v. North Tyneside Health Authority [1997] 1 WLR 596 at 600 obiter), even before there has been a grant of Probate. Where there is no executor that same duty falls upon the administrators of the estate, but they may not be able to obtain an injunction for delivery of the body before the grant of letters of administration (see Dobson).

Buchanan v Milton  [1999] 2 FLR 844 per Hale J.

As Hale J stated in Buchanan, a dead body is not property and cannot be owned by anyone.  However, because there is a duty to properly dispose of a body, the person with this duty can call for possession of the body in order to carry out that duty.

Absent an order from the court, the order of priority for those with the duty to dispose of the body is as follows:

• Where there is a valid will - the executor(s) named in the will.
• Where there is an intestacy and letters of administration - the administrator(s) named on the letters of administration.
• Where there is an intestacy but Personal Representatives have not been appointed, it will be the person(s) with the highest right to take out a grant as set out in section 46 of the Administration of Estates Act 1925 and rule 22.1 of the Non-Contentious Probate Rules 1987.
• The householder in whose property the Deceased died and/or the person with actual possession of the body (often a hospital or the coroner).
• In the absence of any of the above, the local authority. 

The rule that a body is not property and can’t be owned by anyone includes the Deceased herself.  Therefore, whilst the Deceased may leave a will expressly stating that he wishes to be aquamated, there is no rule or law that says these wishes must be followed. 

Scope for disputes

Where there is a dispute between personal representatives/partner/other family members as to how to dispose of a body, the usual route to court is via an application pursuant to s.116 of the Senior Courts Act 1981 seeking a Grant limited for the purpose of disposing of the body.

The court will not usually make an order directing how the body should be disposed of, but instead will listen to the competing proposals and choose the person to take the limited grant.  When making this decision, the following factors will be taken into consideration:

• the Deceased’s wishes, 
• the reasonable requirements and wishes of the family who were left to grieve,
• the location with which the Deceased was most closely connected, and
• perhaps the most important, that the body be disposed of with all proper respect and decency, and if, possible, without further delay.

It can be seen from the above factors that disputes of this nature are generally based upon where a body should be laid to rest (for a recent example see Pangou v Nzoulou [2022] EWHC 147) but disputes as to how the body should be disposed of follow similar lines.

Whilst in most cases, it is a simple question of burial or cremation, disputes can range over whether other methods of disposal should be implemented, particularly where religious observance dictates a particular form of disposal.  With aquamation there is the added complication of (at the moment) having to transport the body abroad.

My father wanted to be aquamated and I am one of the Executors: What do I do?

As a Personal Representative, there is a duty to act in the best interests of the estate and to deal with its administration. This extends to promptly and efficiently dealing with the body. 

The Deceased’s wishes are undoubtedly a factor upon which the Court will place considerable weight, particularly if they can be shown in clear, undisputed written form. Including one’s wishes in a Will is the ideal way to achieve this, but the court will accept any evidence (including oral evidence from witnesses if necessary) as to how the body should be disposed of.  

However, an Executor also has a duty to the beneficiaries of the estate. The cost of the disposal of the body is an estate expense and generally deductible from the beneficiaries’ inheritance. Aquamation is not currently available in the UK – so transportation abroad to a country which does offer this service, including costs of a private ambulance, plane travel, and collection and storage abroad, are all costs to incurred alongside the cost of the procedure itself. There are also added complications around Burial Transport Permits and other bureaucracy required for international air travel.

The cost of this process can be significant, particularly in the context of smaller estates. Given the risks that Personal Representatives face in their role, including their obligation to account to the estate from their personal funds for expenditure improperly incurred, it is no surprise that Personal Representatives without the consent of all beneficiaries often seek the Court’s blessing before taking steps which might otherwise expose them to criticism and liability for the costs.

If a Personal Representative finds themselves facing opposition from all the beneficiaries, then either the body should be disposed of more cheaply via other means (in accordance with the beneficiaries’ unanimous wishes) or otherwise the Personal Representative should apply to Court under the Court’s supervisory powers under CPR64. 

My brother the Executor firmly believes in reducing our carbon-footprint and thinks that Aquamation is a great idea. He wants my father to be aquamated but I say that Dad wanted to be buried: What do I do? 

In this scenario, a litigant should be collating evidence of the Deceased’s wishes and preparing for an emergency Court application. The Court’s ability to provide a Grant limited to disposal of the body allows it to have a supervisory role over how the body is dealt with, without it impacting upon the rest of the administration of the estate.  In addition to the factors set out above, the court is likely to consider the cost of aquamation.

An important fact to remember is that disposal disputes are “hostile litigation of the normal sort” (Anstey v Mundle (2016) EWHC 1073) and as such costs, which can be significant, generally follow the event.

Conclusion 

The rise of green alternatives to burial and cremation is expected to lead to an increase in disputes over the disposal of bodies.  As with all estate disputes, the best way to avoid costly litigation is to address these issues before death. Honest and open communication between testators and their families, and, where possible, pre-payment of funeral arrangements, stand the best chance of those wishes being followed.  If relocation abroad or a particular process, ‘green’ or otherwise, is wanted by a will-maker, then the more steps taken during lifetime the more likely the estate is to avoid upsetting and expensive steps having to be taken on death.