Potential Post-Death Problems: The rise in disputes concerning funeral and burial arrangements.

The death of a loved one can be a traumatic experience leaving a family feeling overwhelmed with grief. In most cases, families are able to work together to sort out the post-death formalities such as registering the death of the deceased and making funeral arrangements. However, in a rising number of cases, families are reaching an impasse as to how they should proceed. We shall explore the legal position and potential issues that may arise below.

The Deceased’s wishes

The starting point in most cases will be to consider whether the deceased had any specific wishes in respect of their funeral or subsequent burial. The reason for this is because it is not uncommon for a loved one to express to their family or loved ones how they wish for their body to be dealt with following their death. For example, they may during their lifetime express a wish to be cremated and have their ashes scattered in a particular location which is fond to them. Alternatively, they may have made arrangements with a funeral director to purchase a burial plot in a particular location next to a loved one who has pre-deceased them.

It is important to recognise that although the deceased may have had strong wishes as to how their body should be disposed of following their death, these wishes are not binding. This is the case even if the deceased specifically included instructions to their executors in their Last Will & Testament as there is nothing to compel the executors to follow them (Williams v Williams 1882 20 Ch D 659).

However, in most cases, if the deceased did leave some form of instructions either in their will or an accompanying letter of wishes, for example, those wishes will usually be taken into account or followed by the deceased’s executors or those who assume responsibility for the disposal of the deceased’s body.

Responsibility to dispose of the body

As per R v Fox (1841) 2 QB 246 a body cannot be bought or sold, stolen or criminally damaged, or seized by the deceased’s creditors as security for his debts. However, following death, as a matter of public policy, certain persons will be responsible for making arrangements as to what happens to the body and ensuring that the body is disposed of properly. This means that nobody can own a body as a body cannot be considered as “property”. As such, those entitled only take possession of the body in order to carry out their duties.

Despite most funerals usually being held within four weeks of the deceased’s death, there are occasions where delays may take place in respect of burial. However, deliberately delaying to organise burial arrangements does in fact go against public policy which categorically states that an individual should receive a dignified and decent burial or cremation as soon as possible.

Who is entitled to make the arrangements?

If the deceased died leaving a valid will, it will be the responsibility of those named as executors to take possession of the deceased’s body in order to dispose of it.

In the event that the deceased died intestate (i.e., without a valid will), the responsibility will pass to the deceased’s administrator who will be known as their personal representative. This will usually be the person who has priority under Rule 22 of The Non-Contentious Probate Rules 1987 such as the deceased’s surviving husband or wife in the first instance.

As such, those who may regard themselves as the deceased’s “next of kin” such as the deceased’s long-term carer or a close companion, for example, may not necessarily have any rights in respect of deciding how the deceased’s body should be disposed of. This can in some cases lead to difficult and highly emotive conversations following the deceased’s death.

If the event that no arrangements are made following the deceased’s death, or no one is capable or willing to make such arrangements, under Section 46 of the Public Health (Control of Disease) Act 1984 (“the Act”) the duty will pass to the local authority in whose area the person died or the body was found to make arrangements.

However, unlike executors or personal representatives who are not bound by the deceased’s wishes, under Section 46(3) of the Act the local authority is not permitted to cremate the deceased’s body “where they have reason to believe that cremation would be contrary to the wishes of the deceased”.

Potential disputes - Burials

If a dispute is to arise, this is most likely to happen immediately post death as this is the time when emotions are running high. It may be the case that the deceased’s family wish to make funeral arrangements as a matter of priority but it subsequently comes to light that they have a differing view as to what should happen to the deceased’s body. If this is the case, parties are encouraged to be engage in sensible discussions in order to try and reach a solution.

In the event that a dispute does arise and the parties are unable to work together collaboratively to reach an amicable agreement, it is possible to apply to the Court for assistance which is what happened in the case of Jakimaviciute -v- (1) HM Coroner for Westminster (2) Stanevicience (2019) 10 WLUK 523. This particular case concerned a dispute between the deceased’s two daughters, and an application was made to the Court to ask it to make directions as to the disposal of the deceased’s body. Unfortunately, the deceased’s daughters were unable to agree as to whether their mother should be laid to rest in Lithuania or the UK following her death.

Mr Mark Cawson QC, who was sitting as Deputy High Court Judge, found that the deceased’s youngest daughter was not on good terms with the deceased prior to her death. There was also significant evidence to support the claim that the deceased wished to be buried in Lithuania. As such, the Court ordered that the deceased’s body should be released to Lithuania in line with her wishes.

Considerations of the Court

Further to the above, if the Court is asked to assist with resolving a dispute concerning the burial of an individual, it will need to consider the following important factors which were set out in Hartshone v Gardner (2008) EWHC 3675 (Ch). These include:

• The deceased’s wishes;
• The reasonable requirements and wishes of the deceased’s family and friends;
• The place the deceased was most closely connected with; and
• Ensuring that the deceased’s body is disposed of with respect and without delay.

It is important to stress that the last of the above factors was singled out by the Court as the most important consideration.

The use of Interim injunctions

Many cases will settle without needing the Court’s assistance, however, if it comes to light that an agreement or form of compromise is likely to be made and preparations remain underway in respect of a burial, an urgent application may need to be made for an interim injunction. One of the benefits of obtaining an interim injunction is that it will put a hold on any proposed burial plans until such time that a further order is made by the Court.

The unreported case of Meghjee v BW Foundation (16 June 2020) was an unusual case which arose during the COVID 19 pandemic. In this case, an interim injunction was sought on the basis that the burial was in breach of contract. The claimant sought the disinterment of the body but this was disputed by the deceased’s daughter who did not want his body to be moved. The cemetery also refused this proposal and it was held that there was no prima facie case for breach of contract.

Whilst the above case was thankfully resolved without the Court’s assistance, it does highlight that these types of matters need to be dealt with sensitively and in a timely manner. It is important to remain mindful that families are unusually unable to begin the grieving process in respect of the loss they have suffered until burial arrangements are finalised and their loved one is laid to rest.

Reflect, consider the options, then decide how to proceed

Before taking any form of action, it is crucial for an individual involved in this type of sensitive dispute to reflect on what it is they hope to achieve.

An application to the Court for directions or an injunction is likely to come at a potentially significant financial cost which an individual may not have the resources to be able to afford. This is particularly the case faced by many in the current financial climate with concerns being raised regularly about the cost of living increasingly rapidly.

Furthermore, this type of hostile litigation if pursued is likely to have a long-term damaging impact on a family dynamic. The damage that may be caused and the upset suffered could result in irreparable damage. As such, it is essential to take sufficient time to consider the potential options and weigh up the risks associated with each option before proceeding.

As mentioned above, most disagreements are capable of being resolved which is why it is important to act quickly and seek legal advice as a matter of priority. If you require advice or need assistance in respect of a potential funeral or burial dispute, please do not hesitate to contact us.