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 husbands estate and therefore entitled to arrrange the mode and disposal of her husbands 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 dipsossal. This was refused for the following reasons 1. The deceased remains had been interned for 4 years and should not be disturbed 2. It was not appropriate to divide the ashes 3. The majority of executors has chosen to has the ashes I turned and 4. The Judge was not satisfied the cemetery was an inappropriate final resting place.
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.
If you need further information regarding this area of law please contact us.