Burial disputes arise when there is disagreement about what should happen to a person’s body after they die, including how or where to bury the body. This is often a distressing time for the family and disputes can flare up as emotions are often running high.
While many people choose to set out their wishes within their will, those wishes are not necessarily legally binding or enforceable. This is because it is not legally possible to own a body. Difficulties can therefore arise when relatives or close friends do not agree with those wishes or when a testator does not include any such details of their preferences within their will.
Right to possess the body
The common assumption is that the next of kin has the right to dispose of the body, but this is incorrect. It is actually the person who is under a duty to dispose of the body who is entitled to possession of the body. This will be the executor where there is a will and the personal representative where there is no will.
The Non-Contentious Probate Rules 1987 state that if the person dies intestate (without a will), the personal representative can be, in this order:
- Surviving spouse or civil partner
- Deceased’s children
- Deceased’s parents
- Deceased’s brother and sisters
- Deceased’s grandparents
- Deceased’s aunts and uncles
Therefore, in the case of an unmarried couple, where one of them dies without a will, the surviving partner would have no automatic say in respect of the funeral. Under a separate set of rules, the parents of a minor child have a duty to arrange a funeral.
It should also be noted that a hospital has the right to detain a body if it is deemed that the body may be infectious, or if someone has died from a notifiable disease. The coroner then has first right to take possession of the body temporarily, in order to complete an examination to determine the cause of death.
Ashes and Cremations
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. You cannot own a body, but if the ashes are held in an urn, then the urn is property and is subject to normal property rules.
Crematorium paperwork usually contains questions designed to prevent the cremation of a body without the knowledge of close relatives and the executors, but the crematorium must hand over the ashes to the person who arranged the cremation.
These basic rules may not cover all the various potential scenarios and a court can impose different arrangements. The courts will take into account other factors, including practicality, such as who actually has control of the body or ashes and the need that the body be disposed of with respect and without delay. The wishes of the deceased, the executors and close relatives and friends will also be taken into account, but these are usually the source of the dispute.
Disputes among executors
Professional executors will often delegate responsibility for arranging a funeral to family members of the deceased, although they retain the right to overrule the family members. There can also be disagreement amongst the executors themselves or the identity of a personal representative may be in dispute due to the validity of the will being questioned, such as by allegations of lack of capacity, undue influence, or want of due execution. Resolving such disputes can take considerable time and can lead to delay in the burial or cremation. In such circumstances, an application can be made to the court to determine who and the grounds upon which disposal of the body may occur without also resolving the wider dispute and thereby avoiding unnecessary delay.
If you are involved in such a dispute or wish to take advice to try and avoid such a dispute then please contact Justin Sadler at [email protected].
Get in touch
Justin deals with all aspects of Dispute Resolution for both businesses and individuals, including including Contentious Probate, Employment Law ( for both businesses and individuals) and Commercial Litigation. This means that he is familiar with the many different courts and tribunal as well as the many different methods for resolving disputes, including alternative dispute resolution such as adjudication and mediation.