Burial and Funeral Arrangement Disputes

Published: January 5th, 2024

7 min read

In a recent case Forbes Solicitors successfully acted for their client ("S") in obtaining an injunction to prevent the cremation of the client's late brother ("D"), whose last wish was to have a Muslim funeral and burial (given cremation is forbidden in Islam).

On the day of the final hearing, the parties agreed an order under section 116 of the Senior Courts Act 1981, for our client to be appointed as administrator of D's Estate, limited to dealing with all aspects of D's funeral arrangements, custody of the body of D, and disposal of the body of D.

Our instructions:

D was from a Muslim background and born into a Muslim family. Although he wasn't a practising Muslim, his final wish recorded in the notes from the Hospice where he was a resident, was for a Muslim funeral and burial.

D died without a Will, so his wife ("W"), with whom he was estranged for around three years prior to his death, had priority under the Intestacy Rules to be appointed as the personal representative (PR) of D's Estate.

Legal principles - The basic rule is that there is no property in the dead body of a human being (it is not part of the estate). In most cases, the PR has the main responsibility for making arrangements. Dignity, decency and avoiding undue delay are crucial priorities.

W agreed and confirmed to the Hospice and wider family, that D's wishes were to have a Muslim funeral and burial.

Shortly after D's death, W cut contact with the wider family and refused to provide them with any information about the funeral arrangements. In Islam, it is customary to bury the deceased as quickly as possible and the body should not be embalmed due to the process involving alcohol being put into the body.

Forbes Solicitors were instructed by S to make enquiries with W regarding the funeral and burial, and to seek agreement with W regarding the funeral and burial of D.

It was discovered that arrangements had been made by W for a humanist funeral service and a cremation for D. Cremation is forbidden in Islam, is completely irreversible, and went against D's final wishes, and those of the family. A cremation was simply untenable for the family due to their religion and would have been disrespectful to D's wishes.

W, the funeral home, and the crematorium were unwilling to put a hold on the proposed funeral and cremation and refused to confirm when it would take place or if it had already happened.

Forbes Solicitors were instructed by S to apply to the High Court for an emergency, without notice interim injunction, prohibiting W from being able to arrange the funeral and disposal of D, until a final order had been made. This was granted by the Court, as well as W being mandated to withdraw any instructions that she had given relating to the funeral and disposal of D's body.

Legal principles - The inherent jurisdiction of the High Court extends to giving directions about burial, as in Hartshone v Gardner [2008] EWHC 3675 (Ch). It can grant injunctive relief if it is "just and convenient to do so"; see section 37 of the Senior Courts Act 1981.

But because of the primacy of the role of the PR, the jurisdiction to make a grant under section 116 of the Senior Courts Act 1981 if "necessary or expedient" because of "special circumstances" is often the focus.

The "special circumstances" in this claim, were the fact that D himself had expressed his wish to have a Muslim funeral and burial, he had been estranged from W for around three years prior to his death, and the effect that a cremation would have on D's wider family, his friends, and the Muslim community.

Alongside the injunction, S issued a claim under section 116 of the Senior Court Act 1981, for W to be passed over as PR of the Estate, for the purpose of obtaining a limited grant, allowing our client to deal with D's funeral and burial.

Legal principles - From Hartshone v Gardner, and later cases: -

  • The deceased's wishes. (These are not decisive though; see Williams v Williams (1882) 20 Ch D 659 as to such wishes being unenforceable.)
  • Reasonable requirements and wishes of grieving family members.
  • Above all, that the body be disposed of respectfully and decently and if possible, without further delay.
  • The place with which the deceased had the closest connection has a bearing on the assessment of these factors too.

S made several attempts, following D's death, to arrange a 'blended' funeral and burial for D, where D would be washed and shrouded in accordance with the Islamic faith, followed by a service of W's choosing, and a Muslim burial thereafter. S liaised with local Catholic leaders and local Muslim groups, to try and encourage W to agree to a funeral service and burial that took everyone's views and wishes into account. Despite the best efforts of S, W would not agree to any proposal made.

At the final injunction hearing and the hearing in respect of S's claim under section 116, HHJ Halliwell stated that he wanted W to consider the offer made by S regarding a blended funeral and burial.

During the final hearing, W sought to agree S's proposal for a blended funeral, and following discussions an Order by consent was agreed between the parties.

The interim prohibitory injunction in place was made final, with W being restrained from arranging, attempting to arrange, or facilitating in the disposal of the body of D. W was also mandated to forthwith withdraw any instructions which she had given to any undertaker and/or any funeral provider and/or any crematorium in connection with the cremation or disposal of D, save for arrangements relating to the humanist ceremony.

Pursuant to s.116 Senior Courts Act 1981, S was appointed as administrator of the estate of D, limited to dealing with all aspects of D's funeral arrangements, custody of the body of D and disposal of the body of D.

This was an excellent result for Forbes's client, who was able to arrange an Islamic funeral and burial, in accordance with her late brother's final wishes and the wishes of the wider family and friends of D.

It also shows how important it is to have your final wishes recorded, and to make sure that family and friends are aware of these wishes.

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