As discussed in our previous blog, there can be no property in the body of a deceased person. It tends to be the executors of the estate who decide the funeral/burial arrangements. What can the executors do if they fail to agree between themselves on those arrangements? The answer is that they can make an application to the Court, and the main concern of the Court is how the deceased’s body can be disposed of with all proper respect and decency, and if possible without further delay. The Court will not attempt to find a resolution of possibly competing spiritual or cultural values of different sets of family members.
Case background
In this case, the Claimant and the Defendant were brother and sister. They were both appointed as their father’s executors, but could not agree on the burial arrangements. The Claimant wanted his father to be cremated in England, whilst the Defendant wanted him to be buried in India. Their father’s body remained in the mortuary of the hospital. The Claimant applied to the Court to exercise its inherent jurisdiction (to direct how the body of a deceased person should be disposed of) to order that his father’s body be released into his custody or that of his representatives, i.e. the funeral directors, and that his father be cremated and the ashes be scattered in accordance with Hindu funeral rites.
Decision
The Court was not able to ascertain the wishes of the deceased, and neither of the parties satisfied the Court to the civil standard of proof that the wishes of the deceased were as they said they were.
The Court decided that the deceased’s body should be cremated in England and his ashes should be scattered in England for the following reasons:
- Taking the deceased’s body to India for burial would take longer and involve more uncertainty than cremation in England;
- There are some members of the extended family left in India. Whether those relatives could or would attend the funeral might well depend upon how far the place of the funeral was from where they lived;
- Burial was not normal practice among Hindus; and
- The deceased was closely connected to England given the fact that he left India when he was 23 to live in England and last visited India in 2003.
Comments
When executors are not on the same page in terms of funeral/burial arrangements and the Court is asked to make a decision on the same, the Court will consider various circumstantial factors when exercising its inherent jurisdiction, such as:
- Where and who the deceased was most connected to;
- The costs and time of funeral/burial arrangements;
- The reasonable requirements and wishes of the deceased’s family;
- The deceased’s religious beliefs; and
- The deceased’s wishes, likes, and dislikes.
In order to avoid disputes as such, it is best for you to include a letter of wishes in your Will to clearly set out how you want your funeral/body to be arranged/dealt with. However, it is important to remember that a letter of wishes is not legally enforceable.
Also, the Court made two very interesting points in its judgment that act as a great reminder to all of the potential applicants:
- The wishes of the wider family would have greater weight than the wishes of the deceased because ‘it is they who attend the funeral and must grieve and remember. The funeral gives them both comfort and closure’; and
- Costs and time of the funeral/burial arrangements are extremely relevant to the Court’s consideration because the dispute not only prevents the family members from moving on with their lives but also ties up public resources which could be used to assist other people.
How can we help?
Ronny Tang is an Associate in our expert Dispute Resolution team, specialising in defamation claims, contentious probate and inheritance claims, Trusts of Land and Appointment of Trustees Act 1996 claims, Equality Act 2010 claims and Protection From Harassment 1997 claims.
If you need any advice concerning the subject discussed in this article, please do not hesitate to contact Ronny or another member of the team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.