29 April 2021

What happens when there is a disagreement as to what arrangements should be followed?

Sometimes, the members of someone's family cannot agree as to how their body should be disposed of after they have died. Whilst small disagreements about this are not uncommon, they are normally ironed out quite quickly. Occasionally, however, different parts of a family simply cannot agree as to what should happen.

The Courts decided long ago that there is no property in the dead body of a human being. It does not form part of someone's estate, it cannot pass under their Will and it cannot be bought or sold.

The disposal of a body is a public health matter. The proper disposal of the body is important and it needs to be arranged without undue delay. Some religious beliefs of course require that the funeral take place immediately.

The primary duty to dispose of the body falls upon the person's personal representatives appointed under their Will.

Sometimes, there is a dispute as to the validity of the Will, and in those circumstances the duty may instead fall upon the person or institution under whose roof the body is located. That may be a house or at times a nursing home or hospital.

If no personal representatives are appointed, for example if there is no Will, then the person with the greatest right to take out a grant of letters of administration can take possession of the body and dispose of it.

If there is nobody at all who is entitled to take up this duty and is willing to do so, the obligation will ultimately fall on the local authority by virtue of section 46 (1) of the Public Health (Control of Disease) Act 1984. That may happen if for example a person dies living alone with no known family.

If involved, the Coroner has a right to deal with the body which overrides that of all other people. The Coroner may for example want to delay disposal of the body if it is needed as evidence.

A person making a Will will often give directions for their funeral. That may be in one of the clauses right at the start of the Will or it may be in a separate letter of wishes. The Court will take those directions into account, but they are only one factor which the Court will consider. They will not be regarded as binding.

If the person is very organised and pays for their own funeral in advance, it is still possible for those who are arranging the funeral after the death to abandon those plans (and probably the money) and to arrange something else if they are determined to.

As to the European Convention on Human Rights, a person having their body disposed of in accordance with their wishes is probably not a human right which survives their death.

The Court's Powers

The Court can step in if there is an intractable dispute, and it can do so under 3 different powers:

1. the Court has an inherent jurisdiction (i.e. a power which is not based on anything written down as a separate set of rules) to direct the method of disposal of someone's body. The Court used that jurisdiction in relation to Ian Brady so as to ensure that his ashes were not scattered on the moors in Yorkshire where his victim’s remains were left;

2. under section 116 of the Senior Courts Act 1981, the Court can appoint someone to be a personal representative to an estate. The Court can use that power to appoint someone who they know will carry out the funeral in an appropriate manner; and

3. under CPR 64.2 (a) (i) the Court has the power to determine any question arising in the administration of the estate of a deceased person. The Court can do so whether or not a grant of probate has been made.

Practical Steps

In practice, it will be important for a person, before they die, to discuss with their loved ones what they would like to have by way of a funeral and perhaps a headstone.

They should understand that if there is a dispute after they have died, their wishes will be regarded as having weight but as not being binding.

They should communicate their wishes to their family so that everyone knows in advance what is going to be happening. It will be helpful for them to be specific about their wishes. It may be better for them to say, not just for example that they wish to be buried, but they wish to be buried in a certain graveyard and to have a certain type of ceremony.

An application to the Court can be made if there is a dispute after they have died. Such applications are however very expensive. The making of such an application should be avoided if at all possible. Luckily, the threat of an application may be enough to get people to see sense, to compromise or to take a reasonable line.

In an urgent case, for example if there are plans to take irreversible steps in relation to a body or to take it out of the jurisdiction of England and Wales, an injunction can be obtained. That, again, is likely to be extremely expensive.

In all these cases, communication between the person involved and their family about what they would like to happen will be extremely valuable, so that disputes do not arise after they go on to die. This is likely to be particularly important where there has been a divorce and a second marriage, perhaps with a second set of children, since in such situations a dispute about the arrangements for the funeral are likely to be more likely. That sort of discussion would be a good idea though no matter what the family circumstances are: not only can one reduce the risk of disagreement, but one can also discover and follow the deceased’s wishes as well as saving a lot of worry and heartache for the person to whom the funeral arrangements fall.

For more information contact Peter Livingstone on 01935 846235 or email