Contesting a Will Article
01 October, 2018
Recent figures released by a provider of funeral plans in the UK suggest that a quarter of deaths lead to family disputes, and over 20% of these disputes relate to the disposal of a body. In line with these figures, it is my experience that funeral and burial disputes and disputes over the ownership of a corpse are surprisingly common and I have seen a surge in these instructions over recent months. This includes:
This can be a particularly sensitive and distressing time for all concerned. So who has the right to a body and who has the final say over the funeral?
Who has the right to a body on death?
The general rule is that there is "no property in a corpse". A body cannot be gifted or disposed of by a will, and it cannot be bought or sold. It is generally accepted that the purpose of a will is to deal with the disposal of property. Since a body is not property, the Deceased person's wishes are not legally binding or capable of being enforced. There have been challenges to this under the Human Rights Act 1998.
There is a statutory right to donate a body (or part of it) for medicine or science.
It is not necessarily the case that it is the next of kin, surviving spouse or partner or close family who have the first right. The law is very specific in respect of entitlement to a body on death. Essentially it is the person who is under a duty to dispose of the body, and this right to possession starts on death.
The order of priority is:
Therefore, at the risk of over simplifying, the Executor of a will has the final say, or if there is no will, the surviving spouse or children will have the final say.
What about the wishes of the testator?
As explained above, there is no property in a corpse and so the testator's wishes are not legally binding. However, practically speaking, the Executor or person entitled under intestacy, is likely to involve the family of the Deceased when deciding on how to dispose of the body.
What about the ashes?
The ownership of ashes and right to dispose of them is not as clear cut. The rules regulating cremation determine that ashes can only be handed over to the person who delivered the body for cremation. The legal position is not clear whether ashes are "property" and so can be owned.
In some cases, a will may be subject to a validity challenge, or there may be a dispute between Executors. In these circumstances, it is usual for the funeral, burial or cremation to be delayed.
Crematorium paperwork usually contains questions designed to prevent the cremation of a body without the knowledge of close relatives and Executors.
There are a number of ways to resolve these disputes, and often a simple discussion between the parties can resolve the dispute or at least narrow the issues. In my experience, mediation is very effective in these disputes and resolves issues quickly and relatively cheaply.
If negotiation or mediation doesn't work then it is possible to make an application to court for the court to determine the dispute.
Ben Wilson is an Associate at Forbes and specialises in Contentious Trusts and Probate. This includes burial disputes and contesting wills. If you have any issues you would like to discuss with Ben, feel free to give him a call on 0333 207 1130 for a free, no obligation chat. We are flexible with fees and often pursue matters on a "no win, no fee" basis and can defer costs.