There are several factors that have contributed to the recent increase in burial disputes. These include but are not limited to complex family set ups and changes in traditional views that have moved away from religious traditions.
The question of the ownership of a body was established in the case of R v Sharp in 1857 which confirmed the ‘law recognises no property in a corpse’.
The latter case of Buchanan v Milton [1999] emphasised this and confirmed that:
‘There is no right of ownership of a dead body. However, there is a duty at common law to arrange for its proper disposal. This duty falls primarily upon the personal representatives of the deceased’.
Where the deceased left a Will then the personal representatives appointed in the Will have the right to possession of the body but not ownership. If the deceased died intestate (without a Will), then the individuals who have the right to a grant of letters of administration take on this responsibility. Where there is an unmarried couple and the deceased dies without a Will, the surviving partner would have no rights over the body in the absence of a Will appointing him/her as the executor.
Those who are appointed either by the Will or a grant of letters of administration do not have ownership of the deceased’s body but are viewed to have legal possession of the body and the right to dispose of it.
The Court may become involved in a burial dispute where parties are unable to come to an agreement about the arrangements relating to the disposal of the body. An application can be made to the Court for a limited grant of administration that relates to the disposal of the deceased. In the alternative, directions can also be sought from the Court that may assist in ending the dispute.
When the Court becomes involved in disputes of this nature, it will consider the following four points, that were initially set out in Hartshorne v Gardener [2008]:
- The wishes of the deceased;
- The level of the deceased connection to proposed burial places;
- That the body is buried or cremated with the least possible delay and in a respectful manner; and
- The wishes of close family and friends.
Disputes of this nature will be dealt with on a case by case basis.
How can we help?
Faye Henderson is a Trainee Solicitor at Nelsons.
For further information on navigating your small claim, advise you on the options available, and assist you in settling your dispute to bring it to an end, please contact a member of our Dispute Resolution team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.
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