Funeral and Burial disputes: Who has the final say (with or without a Will)?

John Lambe
John Lambe

Published: March 30th, 2021

6 min

Undoubtedly, a death in the family is an extremely difficult and challenging time. With emotions running high, focus quickly turns to ensuring funeral and/or burial arrangements for the deceased is done in the best possible way, in accordance with respecting the deceased's wishes and values.

By law, a corpse is not viewed as legal property. Possession of a body only extends to arranging for the burial. So, what is the legal position on burial - with or without a Will - and who assumes authority for the burial of the deceased?

Where there's a Will, there's a way

If the deceased left a Will, their funeral and/or burial wishes may ordinarily be set out within the Will, together with who the deceased appoints to fulfil those wishes. It is often the executors or beneficiaries named under the Will who are primarily responsible to deal with the funeral and burial.

It is important to highlight though that even if a Will has been drawn up by the deceased and validly executed (in line with s.9 Wills Act 1837), the deceased's wishes relating to funeral/burial arrangements are not currently legally binding - nor are they legally enforceable.

However, by outlining wishes under a Will, this will help the deceased's family (and the Court if required to intervene) make informed considerations and decisions.

Where there's not a Will, what's the way?

In the absence of a Will, it is usually the deceased's family (next of kin) who take on the responsibility to make such arrangements for the deceased.

The responsibility would fall on the individuals listed in the following order of priority:

  1. the surviving husband or wife;

  2. the children of the deceased and grandchildren;

  3. the mother and father of the deceased;

  4. blood-related brothers and sisters, and niece or nephew in the case of a deceased sibling;

  5. grandparents;

  6. blood-related uncles and aunts and cousins in the case of a deceased uncle or aunt.

If the deceased had no remaining blood relations, then the responsibility would fall on the individual(s) who had an interest in the deceased's estate.

If all of the above is not established or a dispute still exists, then the concerned parties may refer this to the Court. It would then be for the Court to step in and effectively take control.

The Court's powers

The Court has inherent jurisdiction to regulate the administration of the deceased's estate (or otherwise) to determine who is responsible for the burial of the deceased.

The Court also has the power to appoint a personal representative to administer the estate of the deceased, in the event there is a dispute over the identification of a personal representative.

The Court's considerations

The Court would consider the following relevant criteria:

  • the deceased's wishes

  • the reasonable requirements and wishes of the deceased's family

  • the place the deceased was most closely connected with

  • that the deceased's body be disposed of with all proper respect and decency and, if possible, without further delay.

The above criteria provides useful guidance on what the Court would take into account to help resolve a conflict. Ultimately, the criteria would be assessed on the facts of each case in order to achieve the most appropriate disposal for the deceased without delay and with proper respect and decency.

It is understandable that if the existence of a Will is not established, there is a greater chance for disagreements to occur within the deceased's family in deciding the most suitable arrangements.

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