Who has the right to make funeral arrangements for the Deceased? The starting position is the Executor.

Whilst it is thankfully not common, we advise from time to time on disputes concerning burial.

The executor has a primary duty to dispose of a body and has right of possession of the corpse for this purpose. The executor can determine the mode and place of burial. Where there is no Will the right to determine mode of burial falls to the administrator.

In Holtham v Arnold 1985 the deceased’s separated wife being entitled to letters of administration of her late husband’s estate and therefore entitled to arrange the mode and disposal of her husband’s corpse above his cohabitee.

Where two or more people are equally entitled to the deceased corpse matters become more complicated. In leeburn v Derndorfer the deceased appointed his three adult children as executors. Whilst cremation was agreed no agreement could be reached on what was to happen to the ashes. One of the parties sought an order that one third of the ashes be disinterred and given to him for disposal. This was refused and Judge said the following:

“I decline to make the orders sought by Mr Leeburn for a number of essentially discretionary reasons. First and foremost, I am troubled by the long period of time which has been permitted to elapse since the death of the deceased. It was never satisfactorily explained to me why it took two years and nine months to institute this proceeding. The deceased’s remains have been permitted to lie at Yan Yean now for over four years. To my mind this is a very powerful reason for not disturbing them. Second, notwithstanding my sympathy for his position, I am not satisfied that the proper course is to divide the ashes as Mr Leeburn asks. This would violate the instincts of Mrs Derndorfer and offend the members of her family for whom the Yan Yean Cemetery is considered an acceptable last resting place. While it may not be determinative, I cannot also ignore the fact that the majority of the executors have selected this location. I remind myself of the traditional reluctance of the Court to interfere with an executor’s decision on this matter. Moreover, I am not satisfied that the choice of Yan Yean as the last resting place of the late John Leeburn was in fact inappropriate. The application will be dismissed”.

In Fessi v Whitmore 1999 separated parents were equally entitled to their deceased’s child’s body. In this case the Judge ruled that to divide the child’s ashes as proposed by the mother would be ‘wholly inappropriate’

If a child dies whilst in the care of the local authority, the right to bury reverts to the child’s parents.

The case of Anstey v Mundle [2016] EWHC 1073 (Ch) is an interesting case that involved a dispute as to whether the deceased should be buried in England or in Jamaica. Two of the deceased daughters contended that Mr Carty’s body should be buried in England. Whilst the deceased third daughter, and his niece, contended that his body should be buried in Jamaica. The deceased made a will or purported will on the 21 July 2014. The validity of the will was contested however that was not a matter for the Court at the purposes of determining where the deceased should be buried.  The purported will appointed two of the deceased’s daughters as executrix and expressed the wish to be buried in Jamaica beside his mother.

It was accepted by all the parties that if Mr Carty’s will is invalid, his three daughters are equally entitled to letters of administration. Following Mr Carty’s death, one of his daughters applied for an injunction as she feared that his body might be removed from the jurisdiction for burial in Jamaica. Two of the daughters gave evidence that their father had expressed a wish to be buried in England whilst his third daughter and niece and various third parties gave evidence that he wished to be buried in Jamaica. The parties accepted, that the court has, in this case, on its particular facts, an inherent jurisdiction, whether as part of its jurisdiction to regulate the administration of estates or otherwise, which is capable of being exercised so as to determine who should be responsible for the burial of Mr Carty’s body.

The Judge Mr Jonathan Klein stated that section 116 of the Senior Courts Acts 1981 entitles the court to pass over the person who would otherwise be entitled to a grant however it was unclear whether that power enabled it to choose among a group of persons who were equally entitled to a grant. In this case the Judge explained that he was not being asked to select, for the purposes of the limited grant, one of the people who would otherwise be entitled to a grant.  The Judge was tasked with determining where the deceased’s body should be buried and would settle the matter using his inherent jurisdiction. However, the Judge stated that had he exercised his power under S116 he would have ordered that a limited grant, for the purpose of disposing of Mr Carty’s body only, be issued to the party or parties who as a result of his Judgement should have conduct of the burial.

Once the Judge set out how the Court derived its power to settle the matter the Judge explained that after taking account of all the evidence and the weight, he gave to various evidence including the deceased’s will he determined that the deceased had wished to be buried with his mother in Jamaica and said the following:

“I have come to the conclusion that it would be most proper for Mr Carty to be buried in Jamaica. As I have said, I have concluded that his wish was to be buried next to his mother and so in Jamaica. To my mind, that this was Mr Carty’s wish is a particularly weighty factor. That wish is supported, of course, by the preponderance of views of Mr Carty’s family. It is right of course that Valerie’s view is that Mr Carty should be buried in England. Whilst, as I have said, I do give weight to that view, I think that Mr Carty’s own wishes, as I have found them to be, together with the more generally held view in the family, outweigh Valerie’s preference.

In reaching this conclusion I have borne in mind the concerns already expressed about the capability of Sonia and Cynthia to arrange for an expeditious burial in Jamaica. I think that rather than justifying an English burial, my concern can be addressed by a provision in the court’s order which allows the parties to return to court in the event that Mr Carty is not buried, say, by a particular date, in which case the court can consider the reasons why and, if it thinks it appropriate, order that Valerie has conduct of the burial.

In the light of the authorities, I do not think that the court can determine or direct where or how Mr Carty is to be buried. What the court can do is to direct who has the power and duty to bury Mr Carty. In the light of my conclusion that it would be most proper for Mr Carty to be buried in Jamaica, I am presently inclined to order that that duty is imposed on Cynthia who, from my observation, is more able to give effect to a Jamaican burial than is Sonia; but I will hear counsel further on this point)”.

In respect of costs the Judge took the view that this was contentious litigation and that following consideration of the will the parties new the risks they were running involving themselves in litigation. The Judge ordered that the losing parties were to pay the winners costs and summarily assessed the claimants’ costs.

If you need further information regarding this area of law, please contact Damian Clode at cloded@clodes-solicitors.com or call 02920 765050.

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