It is a sad fact of arguments over estates that a subject of dispute may be the remains of the deceased. By long-established common law principle a body cannot be property – no one can have rights of ownership over it. So if there is disagreement over the method and place of disposal, or who should arrange it, how are these questions to be decided?
While the law does not confer rights in these cases, it does impose duties. Where the deceased has left a will then in the first instance the duty falls on the executors. The deceased may have left directions for their funeral to guide the executors in their choices, but these are not binding.
If there is no will, the duty falls in the same order as the duty to administer the estate: 1) spouse, 2) children, 3) parents, 4) siblings, 5) grandparents, 6) blood-related aunts and uncles. Evidently the duty may fall on more than one person, which can lead to arguments over arrangements. If no agreement is possible then the court may have to intervene.
Recent case law provides that the court has “inherent jurisdiction” to give directions as to the disposal of a body. The factors it must consider are: 1) the deceased’s wishes, 2) the requirements and wishes of friends and family, 3) the place to which the deceased was most connected, and 4) ensuring disposal takes place with respect and without delay.
This fourth factor will be given the most weight. For this reason anyone finding themselves in a burial dispute should act quickly and seek advice. If arrangements are already in place that you wish to stop, you will likely need a court injunction to prevent the burial while the court weighs the relevant factors and makes its decision.