Burial or cremation: who has the right to decide after death?

 In Probate

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Burial or cremation rights

The fraught difficulty of who has the right to choose how the body of a deceased person is to be disposed of and where it is to be buried is only rarely an issue for the Courts to decide because either the family are happy to agree or the deceased left a Will and made directions for his Executors to carry out.

On 2nd March 2012 Mr Justice Peter Smith delivered judgment in the case of Ibuna and another v Arroyo and another [2012] EWHC 428 (Ch) which considered these issues.

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The Facts

This case involved the body of Congressman Arroyo of the Philippines. He also resided in California. Congressman Arroyo had been suffering from liver complaints since 2006 and for treatment had frequently travelled to England. In 2011 he became seriously ill and again came to England for treatment. He died in England. There was a dispute as to who had the right to take and make arrangements for the disposal of the body between the cohabitee and estranged wife.

The Law

Mrs Justice Hale said in Buchanan v Milton [1999] 2 FLR 844 at 845H:

“There is no right of ownership in a dead body. However, there is a duty at common law to arrange for its proper disposal. This duty falls primarily upon the personal representatives of the deceased (see Williams v Williams (1881) 20 ChD 659; Rees v Hughes [1946] KB 517). An executor appointed by will is entitled to obtain possession of the body for that purpose (see Sharp v Lush (1879) 10 ChD 468, 472; Dobson v North Tyneside Health Authority and Another [1997] 1 FLR 598, 602, obiter) even before the grant of probate. Where there is no executor, that same duty falls upon the administrators of the estate, but they may not be able to obtain an injunction for delivery of the body before the grant of letters of administration (see Dobson). Certainly in this case, the persons primarily entitled to such a grant did not secure delivery of the body and had to apply for a grant. Technically, therefore, this case is about who should be granted letters of administration of the estate for this particular purpose.”

As a matter of public policy for the safety of the public health someone needs to be responsible for arranging a decent burial. At present therefore that the position of the High Court appears to be:

  • These issues are really part of the bigger question “who is entitled to take a grant in this factual matrix”
  • The executor has the primary duty to dispose of the body.
  • In the absence of a will and executor the duty would fall on the administrator under teh laws of intestacy.
  • Failing which the duty would fall upon the householder, local authority, coroner or hospital where the deceased died.
  • In disposing of the body the executor is to have regard to the expressions made by the deceased but is not bound by them.
  • Human rights are not retained by a human being once dead although the following articles may be relevant:
    • Right to religion (article 9)
    • Right to private and family life which should not be interferred with by a public authority (article 8)

Mr Justice Peter Smith confessed that he had some difficulty in a post-mortem application of human rights in relation to a body as if it has some independent right to be heard (see further Borrows v HM Coroner for Preston [2008] EWHC 1387 (Ch)) and the established law is correctly summarised by Hale J as she then was in Buchanan which gives the executor the primary duty to dispose of the body. In disposing of the body the executor is entitled to have regard to the expression made by the deceased but is not bound by them.

Cases to determine the issue of who is to bury (or cremate) the deceased are heard and concluded within applications pursuant to section 116 of the Senior Courts Act 1981. In these cases it is being asserted by one party that special circumstances apply and in light of those circumstances it is necessary or expedient to appoint as administrator not the person entitled to take that grant pursuant to rule 20 (when there is a Will), rule 22 (when there is an intestacy) or rule 30 (when the decesed died domiciled outside of England and Wales) of the Non Contentious Probate Rules 1987, but another. It follows that these cases have been determined pre-grant.

What if the next of kin post-grant wishes to know the exact burial plot?

Are the executors acting lawfully if they refuse to impart this knowledge to the next of kin? It is the next of kin who is required to complete any exhumation or re-interment papers for any such licence to be granted.  If the burial is on private land then there is a real risk that, in the future, a licence may be required as no-one can guarantee that the private land will continue to be a burial site indefinitely.  Without knowledge of the exact site should the next of kin complete the licence application?  What would the court’s position be if the next of kin refused to complete the licence application in these circumstances on an application by the executors?

Cases such as Ibuna ibid, Buchanan v Milton [1999] 2 FLR 844; Hartshorne v Gardner [2008] EWHC 83 (Ch)Burrows v HM Coroner for Preston [2008] EWHC 1387 (QB) do not address this issue but none of these cases state that after the body has been disposed of the next of kin are not to be informed of the exact location.

It is submitted that the law cannot establish a hierachy in which one sort of feeling is accorded more respect than other equally deep and sincere feelings. The courts are required to maintain equality, promote justice and achieve fairness, as far as it is able pursuant to the Civil Procedure Rule 1. The executors when exercising their discretion must take into account all relevant circumstances and must not take into account irrelevant matters or the court is capable of interferring in the decision making process. However, the next of kin is also in a position of responsibility and trust.

In Fessi v Whitmore [1999] 1 FLR 767 Judge Boggis QC determined the issue of where a child’s ashes were to be scattered between two divorved parents on the basis that he was resolving a dispute between two trustees with equally compelling arguments and adjudicated to determine the proper course that should follow as no agreement could be reached. Judge Boggis QC confirmed that the factual matrix is relevant as are the views of all sides and the wishes of the deceased but that ultimately the court is required to find a solution which does fairness and justice to both sides.

In contrast Mr Justice Vinelott in Grandison v Nembhard (1989) 4 BMLR 140 considered:

“whether or in what circumstances a near relative has a right to apply to a court for directions overriding or supplanting a decision of an executor as to the place or mode of burial or if an executor neglects his duty. It would be surprising to find that the court had no power in any circumstances to interfere, save only where questions of expense are involved, and where the relative has an interest in the estate……

To my mind it is plain that even if the performance of the executor’s duty is capable of being controlled at the suit of a relative, the executor must have a discretion as to the mode and place for the disposal of the corpse of the deceased and that on ordinary principles the court will not interfere with the exercise of that discretion unless it is exercised in a way which shows that he has not properly weighed the factors which ought to have been taken into account in that it is wholly unreasonable.”

Conclusion

The views and wishes of the deceased and the competing family members are plainly relevant. However, bearing in mind where the legal responsibility lies in the event of exhumation and/or re-internment is it right to consider the views of the other family members on a par with those of the next of kin? When the deceased expresses no specific wish surely the views of the next of kin should take precedence.

In the cases of Borrows (ibid) at [13] and University Hospital Lewisham NHS Trust v Hamuth & Others [2006] EWHC 1609 (Ch) at [13] it has been held that the person (coroner, hospital, company, organisation or otherwise) currently in possession of the body should make the appropriate arrangements and that this would extend to the householder under whose roof a person has died, at least in circumstances where the deceased is a poor person and no other arrangements can be made. This is confirmed by Mr Justice Peter Smith at [45] where he states that “if there is no executor or administrator the duty to bury a body then falls residually on the local authority where the body is found.”  What does appear to be the case is that the executors do not have the final say on the matter and that again these cases do not support the proposition that the next of kin are not be informed of the exact burial site.

On balance it is the author’s view that the courts can and do interfere with post-grant decisions by executors and/or administrators in relation to where the burial or scattering of ashes is to occur and who is to be told. As advisors we must therefore manage our clients’ expectations in this regard.

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