Funeral disputes — what steps should be taken?

Funeral disputes, and in particular, disputes over the ownership of a body, have become increasingly common, with a significant increase being seen during the pandemic. This has largely been caused by travel restrictions for overseas visitors and limits on the number of people who could attend a funeral.

Disputes regarding burial often include:

• A dispute over the disposal of a body i.e. cremation or burial
• A dispute over the location of the burial
• A dispute over the date of the funeral, especially if close family are attempting to attend from overseas
• Family members not informing friends and family of funeral arrangements

These disputes can come at a particularly distressing and emotional time for all concerned. So who has the right to arrange a funeral and decide how the body should be dealt with?

The law

The general rule is that there is "no property in a corpse". A body cannot be gifted or disposed of by a will, and it cannot be bought or sold. It is generally accepted that the purpose of a will is to deal with the disposal of property and since a body is not property, the deceased person's wishes are not legally binding or capable of being enforced.

Next of kin and order of priority

It is not necessarily the case that it is the next of kin, surviving spouse or partner, or close family who have the first right to arrange the disposal of the body. The person who is under a duty to dispose of the body decides how the funeral/burial should take place. This right to possession starts on death.

The order of priority is:

1. The hospital has the right to detain a body if it is infectious.
2. The coroner is next in order of priority to take temporary possession of the body, in order to determine the cause of death. The coroner will release the body after the examination.
3. If there is a will, then the next person entitled to possession is the named executor.
4. If there is no will, then it is the person who has priority on intestacy. In order, this will be a surviving spouse, children, parents, brothers or sisters.
5. If there are no close relatives or anyone else willing to accept responsibility, the local authority in which the body was found will arrange the disposal of the body.

In simple terms, the executor of a will has the final say, or if there is no will, the surviving spouse or children will usually have the final say.

What about funeral instructions?

The testator's wishes for their funeral are not legally binding. However, practically speaking, the executor is likely to involve the family of the deceased when deciding on how to dispose of the body and should follow any instructions left by the deceased to avoid conflict.

Resolving disputes

In some cases, a will may be subject to a validity challenge, or there may be a dispute between executors. In these circumstances, it is usual for the funeral, burial or cremation to be delayed. Ultimately the court can be called upon to settle a dispute regarding the disposal of a body but the cost of any application, and the often irreparable damage this can cause to family relationships, should not be understated.

Hartshorne v Gardner [2008] decided the factors the court will consider if there is a disagreement on how the body should be disposed of. The court's main objective is to ensure that the body should be disposed of with proper respect and dignity. The court would usually consider the following factors in deciding where the deceased should be buried:

• The deceased's wishes
• The wishes of family and friends
• The place the deceased was most closely connected with
• Practicalities — for example, the location of the proposed burial compared with the location of the body

The High Court held that it could use its inherent jurisdiction to direct who should have control over the burial of a deceased's body if there is a genuine dispute and an injunction could be sought to prevent the burial until the dispute has been resolved.

There are a number of ways to resolve these disputes, and often a supported discussion between the parties can resolve the dispute or at least narrow the issues in dispute. Mediation is also very effective in these disputes and can resolve issues quickly and relatively cheaply.

Legal assistance should be sought at the earliest opportunity if there is the possibility of a dispute so that all options can be considered, including routes to finding a resolution quickly.