10 November 2022

We are all used to the idea of bodily autonomy. That idea is innate and has been reinforced over millennia: It’s my body and I can decide what happens to it during my lifetime.

In Anglo-Saxon times, religious teaching fused with the state’s desire to keep public order and bring an end to feuds, and so a legal system of dispute resolution and compensation was developed to address harm and the infringement of bodily integrity.

A more recent example of the right is that usually, one must give consent to surgery and other medical treatment. Doctors can’t just do what they want.

It might be assumed that one’s right of ownership over one’s body extends past death. It does not. It was held in the case of Williams v Williams in 1882 that in fact nobody owns a deceased person’s body.

Whilst that may seem surprising at first blush, it reflects the fact that once someone has died, as far as the law is concerned, they are no longer a person, and therefore they do not have any rights.

One might well ask: “If I do not own my body after I am dead, who gets to decide what happens to it?”

The significance of the ruling in Williams still has relevance today. Disputes can arise over who has the right to arrange a loved one’s funeral. Will there be a burial or a cremation? Where different parts of the family do not get on, that can be bound up with long-held grievances and with concerns over who inherits what.

Since no-one owns the deceased’s body, how is such a dispute to be resolved?

The law provides that it is the deceased’s personal representatives (their executors where they have made a Will, the person with the best right to apply for a Grant of Letters of Administration where the deceased died intestate) who have the right to determine how and where the body should be laid to rest.

The deceased’s stated wishes (perhaps in their Will) regarding disposal of their body are not binding, although they do have to be taken into account. The personal representatives are not obliged to comply with the wishes of third parties. That said, it may be wise for them to do so, in order to keep disagreements to a minimum.

Though the right and the power to make decisions lies with the personal representatives in most cases, the situation is different when it comes to organ donation, and there are both presumptions of consent to organ donation plus the power of the person concerned to opt in/out of organ donation schemes.

Making a Will and appointing executors who will respect your wishes is perhaps the best way to avoid arguments once you are gone.

To speak to one of Battens’ Private Client Department about making a Will, estate administration, and wealth management during life, please contact Naomi Dyer on 01935 811307.

For problems concerning the validity of a Will, contested inheritances and estate administration disputes, please contact Peter Livingstone on 01935 846235