Who decides where and how you should be buried, and who must pay, is an increasingly common question we’re asked by our clients. Here, solicitor Helen Law explores the issues.
Historic ruling spotlights funeral and burial issues
Legal questions about funerals and burials have been highlighted by a series of cases recently, including the high-profile decision by the High Court to bury Richard III in Leicester, where his body had been discovered under a car park, because he had not expressed clear wishes to be buried at his ancestral home of York.
Family disputes raise legal questions
In a less regal but equally important context, we have seen a marked rise in the number of cases we take on involving family disputes following the death of a loved one.
Some conflicts make it necessary to establish who is responsible for arranging and paying for a funeral, and whether the executors to a deceased’s estate are required to carry out the individual’s wishes.
Occasionally we have handled disputes between close family members in which feelings have run high on issues such as where a person is to be buried, what sort of funeral should take place, and whether the deceased should instead be cremated.
Legal difficulties if there is no valid Will
When someone dies, by law nobody actually owns the body, however various people have rights and duties relating to it.
The deceased’s personal representatives (executors of their Will, or the administrators of their estate) have the right to determine how and where a body should be disposed of – even if other members of the family object.
If probate has not been granted or somebody dies without a Will, then no personal representatives have been appointed.
When this happens the person with the best right to the grant of administration takes precedence and if there are two or more people with equal entitlement, any dispute will be decided by a judge.
Decisions about burial are typically decided by reference to a family hierarchy that starts with the deceased’s spouse, who is then followed by children, parents, siblings and more distant relations.
This means the courts face difficult decisions in situations where equal duty to bury is given to two conflicting parties, for example a son and daughter of the deceased.
The importance of keeping an updated Will
In the case of Ibuna v Arroyo, Judge Peter Smith ruled that executors have the primary duty to dispose of the body and can take account of wishes expressed by the deceased. However, if no Will is in place there is no legal requirement to follow these wishes.
As many of us have strong feelings about what happens to our bodies after death, this underlines the importance of expressing burial wishes in your Will and keeping this document up-to-date. If you don’t, there is a risk that your wishes may not be implemented – and the chances of this happening are greater if family members are likely to disagree.
For further advice on funerals and burials, call Helen Law on 01254 884253 or email her at helen.law@whnsolicitors.co.uk
