Ownership Of A Deceased’s Ashes

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When a person dies, they will often leave behind many belongings in the form of property. This could include personal belongings, money, vehicles and possibly a house.

The passing of these belonging are generally covered by their Will, if they made one, or otherwise pass in accordance with the terms of intestacy. This will be binding on the personal representatives, subject to any further agreements made between the personal representative and beneficiaries. The ownership of the deceased’s body and burial wishes cannot however, be binding on the personal representative and unlike a deceased’s belongings, this is something which cannot be owned by an individual.

The case of Williams v Williams held that there can be no property in the body of a deceased. Further, any provisions over burial arrangements made in a Will cannot be binding on the personal representative.

Rights of possession – burial arrangements and ashes

Although there is no right of ownership, there is a right to possession as needed for the purpose of burial arrangements. The right of possession will generally lay with the personal representative who becomes responsible for the funeral arrangements and disposal of the body. In the absence of a personal representative, this role can be taken by the family in accordance with an order of priority. In the event no one is willing to make such arrangements, it will be left to the local authority.

Following a cremation, the ashes are to be left with the individual who made the funeral arrangements. Again, this is not a right of ownership over the ashes, but instead is merely a right of possession which immediately follows the cremation. The personal representative may then decide where to spread or inter the ashes and any decision is likely to be made in agreement with the remaining family of the deceased. It is possible for disagreements in such arrangements to arise which raises the question of whether anyone can have a right of ownership over the ashes, which enables them to make the final decision.

Ownership of a deceased’s ashes – case law

The case of R v Kelly held that it is possible for there to be property rights over a deceased’s ashes on the basis they have different attributes following an application of skill. The act of skill being the act of cremation. This case is likely to only apply in cases where it has been decided to retain the ashes as opposed to spreading or interring them. The difficulty here then arises as to whom rights of ownership lay with. This will often be with the individual in possession and makes it difficult to claim ownership unless an act of theft can be shown.

Where a dispute arises over the spreading or interring of ashes, the Courts are reluctant to become involved, but will make a decision if necessary. The Courts will consider the facts of each case and make a decision as to what appears to be the most appropriate based on the circumstances. This means that the wishes of the personal representative or someone who is deemed to have a higher priority in a dispute will not always be followed.

ownership ashes

How Nelsons can help

Stuart Parris is an Associate in our expert Dispute Resolution team, specialising in inheritance and Court of Protection disputes.

If you require any advice on the above subjects, please contact Stuart or another member of the team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.

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