Ash Disputes

Sadly, the death of a loved one often leads to a number of disputes amongst the family. This is not unusual given the emotions involved and these disputes can often turn bitter quickly.

Here at Nelsons, we would advise anyone becoming involved or pre-empting a dispute seeks professional legal advice at the earliest stage with a view to resolving any dispute as quickly and as efficiently as possible.

What do disputes often revolve around?

Most disputes tend to revolve around the deceased’s estate and the split of assets/money. Disputes are not only limited to those concerning financial matters and at Nelsons we have become involved with many disputes concerning a person’s funeral arrangements and in particular, the control or disposal of a deceased’s ashes.

Whilst funeral arrangements and the disposal of a person’s ashes is not a pressing legal matter concerning the administration of a recently deceased person’s estate, there can be no doubt that this is of considerable personal importance and can be a sensitive matter for those close to the deceased.

Disputes over a loved one’s ashes tend to involve conflicting views on what that individual would have wanted. Planning ahead, these disputes can be easily avoided if the person in question expressly confirms their wishes prior to death however this is sometimes not the case and if so, it gives rise to such disputes. A further complication is the fact that a person’s wishes as to the disposal of their body are not legally binding which means that challenges can be raised.

Unfortunately, the Court’s approach in respect of these disputes is to stay out of it so far as possible and leave the family to resolve disputes between themselves. The law applicable to this area is limited and provides minimal guidance as to whose proposed approach may be correct in the event of a dispute.

The starting point is that there can be no ownership in a deceased person’s ashes. This of course provides no guidance to those involved in a dispute and to some extent, allows disputes to escalate and unravel. It is however the Personal Representative’s role to deal with the funeral arrangements and burial and therefore a starting point may be that any decision is down to the Personal Representative.

A Personal Representative is not bound by the beneficiaries to the estate and therefore in the event of a dispute between the beneficiaries, we are brought back to the starting point that no one is able to own the ashes, and no one is legally in a position to have the final say as to their disposal. The parties should therefore seek to reach an agreement amongst themselves before pursuing formal proceedings.

What to do if no agreement can be made

In the event, no agreement can be made the Court can reluctantly make a decision. Previous cases suggest the Court tends to favour the applicant with the highest priority. Priority is assessed in accordance with the Administration of Estates Act. This is not always a given however and the Court will pay attention to the proposals put forward by all parties.

Due to the Court’s reluctance to become involved, it is always advised any parties involved in a dispute seek to reach an agreement between themselves as soon as possible. This will not only lead to an arrangement all parties are happy with, but it will also avoid the significant costs and delay these cases can attract. Suitable arrangements may be to split the ashes or to agree on a place for them to be interred.

Comment

When becoming involved with these disputes parties should be aware that there can be no claim against a person who has disposed of a person’s ashes against their agreement, so it is important to act promptly.

It is also common for funeral homes to find themselves tied up in ashes disputes. Funeral Homes will of course hold the ashes following a cremation and will hold these at the instruction of the person they entered into a contract with. It is not uncommon for the person entering a contract with a funeral home to not be the personal which often causes difficulties as to who the funeral home should release the ashes to.

Case law suggests a claim for the wrongful release of ashes could only be made against funeral homes when there is a breach of contract. Because of this, it is likely a funeral home will only release a late relative’s ashes to whomever they entered into a contract with. This is something for personal representatives to bear in mind at the outset when dealing with funeral arrangements and a personal representative is best advised to ensure that they are the person instructing a funeral home to control any disputes concerning a person’s ashes should this arise.