Whilst we all like to hope that when a loved one passes away there will be no dispute with family and friends as regards the distribution of their estate or matters ancillary to their death, in reality this is often not the case. Indeed, in many cases disputes can begin immediately upon the death of a loved one with the question of their funeral arrangements.
In many cases there will be a disagreement as to whether a loved one should be buried or cremated or where their funeral should take place and if they are cremated what should then happen to their ashes. So what can you do if you find yourself in this position?
Who owns the deceased’s body?
Whilst as indicated the deceased’s will, if there is one, will contain persuasive evidence, it is not automatically binding in all cases and it is necessary therefore to consider who owns the deceased’s body and who in turn has the right to dispose of the same.
To determine who has priority to own the body, one must first examine the cause of the deceased’s death. If the deceased’s body is infection then the hospital (assuming the deceased died in hospital) has the right to detain the body. The right to possession of the body is then transferred to the coroner in order that the cause of death can be established with the body only then being released to whoever is next entitled to it once the coroner’s examination has taken place.
Did the deceased have a will?
If the deceased died having made a valid will then after release from the coroner (or immediately if there is no need for the coroner’s involvement) possession of the deceased’s body will vest in the executor(s) named in the deceased’s will. The executor(s) has the right to lawfully dispose of the body – i.e. to make all the necessary funeral arrangements.
It is important to bear in mind that the executor(s) may not necessarily be a family member or friend of the deceased. In many cases, named executor(s) are professional people, e.g. an accountant or lawyer. Nonetheless, it is the named executor(s) who has priority over ownership of the body and the consequential funeral arrangements.
In practice, executor(s) will usually liaise closely with the deceased’s family members to determine arrangements for the deceased’s funeral, particularly if the deceased’s will does not set out any personal wishes of the deceased. However, it is the executor(s) who would have the final right of sign-off and this could cause difficulties if their views differ substantially from family members.
If the deceased did not have a will, then the right to possession of the deceased’s body would vest in the administrator of the deceased’s estate either by virtue of having obtained letters of administration or under the intestacy rules if no letters of administration are necessary.
Executors/administrator V family members
Given that the final decision rests with the executor(s) or administrator, even where every attempt is made to try to reach agreement with the family members, this can still give rise to a dispute. Whilst attempts should continue to be made to resolve the matter amicably between the executor(s) or administrator and the family members, if this cannot be done, there is power for the aggrieved party to bring the matter before the court.
In view of the urgency of the matter any initial application would be brought by way of an injunction seeking an order preventing (in the case of the family members) the executor(s) or administrator from disposing of the body and/or the coroner releasing the body or (in the case of executor(s) or administrators), seeking an order permitting disposal of the body.
In the recent case of Jakimaviciute V H M Coroner for Westminster & Stanevicience the court had to decide which of the deceased’s two daughters were entitled to possession of their late mother’s body.
Briefly, the deceased had taken up residence in the United Kingdom, having moved from Lithuania in 1995. She returned to Lithuania several times a year and retained a valid Lithuanian passport.
In July 2017, after being diagnosed with cancer, she made a will appointing her daughter, Rasa as executor of her estate. When she died in September 2018 Rasa made funeral arrangements for her to be buried in Lithuania. However, her other daughter, Lina wanted her to be cremated and buried in the United Kingdom.
Accordingly, Lina applied for and was granted an injunction preventing the coroner from releasing her mother’s body to Rasa. Lina also claimed that her mother’s will was invalid on the grounds that she had lacked testamentary capacity at the time of execution of the same. No prior will having been made by her mother, Lina claimed that her mother had died intestate.
Although Lina had been granted an injunction as a temporary measure, this was subsequently discharged as, when the court considered the matter in greater detail at the full hearing of the claim, it determined that there was no good evidence to suggest that the will should be challenged. On the other hand, there was plenty of evidence supporting the deceased’s wish to be returned to Lithuania after her death. The evidence pointed towards the deceased wanting to have her remains buried in Lithuania and there was no good reason to go against these wishes. The court therefore ordered the body to be released to Rasa.
Whilst disputes over possession and disposal of a deceased’s body usually occur at a time of considerable emotional distress for any family member, it is important that if any dispute arises urgent action is taken since otherwise there is a risk that the body will already have been released into the care of the executor(s) or administrator or possibly even disposed of before the court can consider the matter.
However, the need for urgent action should also be balanced with the risk in relation to costs. Due to the urgent nature of an injunction application, at first instance the court will not consider the full merits of the claim but merely the question of whether an injunction should be granted (i.e. possession of the body preserved or released) pending full consideration of the matter. If upon full consideration of the matter any injunction obtained is subsequently discharged the applicant can usually expect to be ordered to pay their opponent’s costs of the action in addition of course to their own costs.
If you have any questions relating to this article, please contact Ally Tow
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.