Disputes over the body of a loved one following death
To quote from Kenzaburo Oe (Hiroshima notes) “The dead can survive as part of the lives of those that still live.”
This is unfortunately true in cases where, following the death of a loved one, there is a dispute over the disposal of the body or ashes. Such disputes are not as uncommon as might be thought and those at opposite ends of a dispute over burial or interment may have understandable and compelling arguments. When addressing such a dispute judges are faced with looking to legal authorities and rules which are not always sympathetic to the situation.
In law there is no property in a corpse. It cannot be criminally damaged, sold, stolen or destroyed. However, there are laws applying to the process of cremation which will make it unlawful to cremate a body unless in a prescribed way. Public health concerns also impose on certain individuals or the local authority a duty to dispose of a body. Delays in burial or disposal of the ashes can be very distressing and disputes expensive.
Who is entitled to dispose of a body or ashes? It used to be the case that those appointed by a Will or those entitled to secure a Grant of Administration (where no Will is thought to exist) had the absolute right to determine whether the deceased should be buried or cremated. In practice Judges have shown that they are loath to interfere with the decision of an executor unless, for instance, the executor is acting unreasonably or dishonestly and strong grounds in opposition suggest to the judge that he or she ought to intervene. The court has a right to displace those entitled but it is unclear when or if a Judge would agree to do so and everything depends on the facts of the case.
Additional difficulties can arise where, for instance, a Will appoints two family members as executors and they disagree over the arrangements. In this case the court will often adopt a practical and pragmatic approach to any dispute over funeral arrangements or disposal of ashes. Factors the court might take in account are the disposal of the remains, the deceased’s own proven wishes and practical considerations.
It is recommended that everyone have a carefully thought out and constructed Will. Further, in order to narrow down the possibility of a dispute over the disposal of their body or ashes the Will and the maker of the Will make clear what they wished to see happen after their death. If executors are carefully selected, the deceased’s wishes set out clearly then it is likely that what the deceased wished to see happen will actually take place.