Disputes over funeral and burial arrangements

It’s never easy to lose a loved one, and the amount of bureaucracy involved in things like handling probate, dealing with a will, arranging a funeral, and deciding on a burial or cremation doesn't make it easier. The issue of when, where, how and by whom the body will be disposed of, can cause disagreements and arguments, especially if the deceased did not leave any wishes around this area or make any preferences know.

In September 2023, a case highlighted the problems that can occur when someone tries to control funeral plans. To summarise, the deceased’s partner made funeral arrangements without informing the deceased’s daughter about it, and the daughter launched legal proceedings. 

The legal action was an application for the claimant (daughter) to have possession of the deceased’s body and to make arrangements for its disposal. As well as this, the claimant applied for an interim injunction to prevent the defendant (partner) taking possession of the body herself. 

In a witness statement, the claimant stated that the defendant had claimed to be entitled to bury the deceased, and that despite not living with the deceased prior, the defendant had moved into the house after death. The claimant also stated that her dad, the deceased, had died intestate meaning he had no will. 

However, it was discovered that there was in fact a will left by the deceased shortly before his death. It named the defendants daughter as an executor. 

There was a dispute over it validity due to the fact that it was signed via fingerprint rather than a written signature, and it was witnessed by a nurse who cared for him, despite the hospital policy not allowing staff to do so. 

The judge, although describing it as ‘somewhat unusual’, ruled that the will was regular on the face of it and appeared to have been property carried out in accordance with the Wills Act 1837. This meant that as per the will, the deceased’s partner’s daughter was able to take possession of the body and arrange for its disposal. 

What should we learn from this case? 

To put it simply, the decisions regarding funeral arrangements is the responsibility of either the executors names in any will made by the deceased, or the person entitled to receive a Grant of Probate (where there is a will) or Letters of Administration (where the deceased died without a will).

In the latter case the priority runs through spouses, civil partners, and biological relatives. It does NOT, crucially, include any unmarried partner who has not been appointed as an executor, even if they feel they most fully understand the wishes of the deceased. 

The complications of blended families 

The rise in blended families could be a contributing factor to the rise in funeral disputes. Children from different stages of the life of the deceased often have different opinions on what should happen as far as the funeral is concerned. 

Types of issues that often arise include: 

• Whether the body is buried or cremated.
• If burial is chosen, where that burial will take place.
• The date upon which the funeral will take place – usually an issue when loved ones have to travel from further afar or overseas to attend the funeral.
• Some members of the family have not informed other family members or friends of the funeral arrangements.
• Who is allowed to attend the funeral.

The law in general states that there is ‘no property in a corpse’, a phrase that means that a body cannot be gifted or disposed of as part of a will, and cannot be bought or sold, criminally damaged or stolen. 

This means that, since any will written by the deceased is intended to deal with the disposal of property, the wishes of the deceased, as stated in their will, are not legally binding. These wishes may well be taken into account if a dispute arises and the parties attempt to come to an agreement or the court has to decide, but they still do not carry any decisive legal weight.    

The legal order of priority for possession of a body

1. A hospital has the right to retain possession of a body if it is infectious.
2. The coroner takes temporary possession of the body so that a cause of death can be determined.
3. If a will has been made, the next party entitled to possession of a body is the named executor
4. If there is no will, then the order of priority runs through surviving spouse or civil partner, on to children, parents, brothers or sisters. 
5. If no close relatives can be found, the local authority in which the body was found will take possession. 

In the majority of cases, the executor of the will has the final say on any funeral arrangements, and if there is no will, it will be a surviving spouse, civil partner or children.

The wishes of the deceased, as stated in any will, are not legally binding. In most cases, however, the executor will follow any instructions left (where practicable and affordable) and will involve other family members in the arrangements. 

When there is a dispute

If a dispute does arrive, as with the case detailed in this article, it may be able to be settled through negotiation or mediation. If it cannot be settled, then the court will be asked to make a ruling based on the following:

• The wishes of the deceased.
• The wishes and reasonable requirements of the family and friends who have been left behind.
• The place with which the deceased was mostly closely associated.
• Ensuring that the body is disposed of with respect and without delay. 

The factors respect and delay hold the most weight over court decisions in the majority of cases. 

How can Hegarty help? 

If you require support navigating a dispute, please contact our team today for impartial, confidential, and friendly legal advice. We can offer the guidance you need to get through what can be a difficult time and advise you on the best course of action for your specific situation. 

We can also offer our services when it comes to writing your will. Our highly experienced team can discuss all aspects of estate or asset protection and later-life decision-making issues sensitively and confidentially with you, leaving you feeling confident about your future.