A corpse: who has the right to decide after death? (Part 2)

 In Probate

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This article follows on from Amy Berry’s article published last month – Part 1 of this article can be found by following this link

Are the Deceased’s own wishes determinative?

The Deceased’s wishes, whether expressed or not, ought to be taken into account in accordance with Article 8 – the right to private and family life[1]. But how does this sit with the position that there is no property in a corpse? How then can a corpse have human rights?

Congressman Arroyo of the Philippines’s corpse caused another dispute between cohabitee and estranged wife[2]. Peter Smith J 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 and preferred the position, that in disposing of the body the executor is entitled to have regard to the expressions made by the deceased but is not bound by them, as set out by Hale J as she then was in Buchanan v Milton [1999] 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 (…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.”

Human rights are not retained by a corpse although the following articles may be relevant for next of kin, relatives and near relatives: (i) Right to religion (article 9) & (ii) Right to private and family life which should not be interfered with by a public authority (article 8).

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Managing conflicts:

Division of ashes is not usually the answer: Byrne J[3] refused to grant an order dividing the ashes after they had been interned for the following reasons:

  • a significant length of time had elapsed since the death of the deceased and the commencement of proceedings by the brother (2 years and 9 months) against two sisters. In his view the deceased’s remains had been permitted to lie in the cemetery for over 4 years (by the time of the trial) and therefore should not be disturbed;
  • it was not appropriate to divide the ashes contrary to the wishes of a sister;
  • a majority of the executors (2 out of 3 siblings) had chosen to have the ashes interred at the cemetery; and
  • he was not satisfied that the choice of the cemetery as the final resting place for the deceased was inappropriate.

Married but separated parents were held to be equally entitled to their deceased 12-year old’s body and disputed what should happen to the ashes[4]. Either scattered off the Welsh coast or interned in the Midlands. Judge Boggis held that as the parents were akin to trustees, he was obliged to make a decision which did ‘justice and fairness to both sides’. He concluded that the remains should be interned in the Midlands because there was a connection there with both sides of the family (being where the child’s paternal grandparents were buried) and would thus provide a focus for all the family. The judge said that to divide the ashes would be ‘wholly inappropriate’.

Family plots: Mr Justice Hart[5] was assisted in his decision that Lewisham Hospital NHS Trust should take possession and bury the deceased in the family plot pending the ongoing dispute between the defendants (the first defendant being a nurse at the nursing home where the deceased was resident when he made his will, the remaining defendants being family members) as to the validity of the deceased’s will and concomitant appointment of the first defendant as executor, by the fact that there was no reason to believe that the Trust’s proposal to bury the deceased in the family plot, in accordance with the family members’ wishes, was not ‘an entirely appropriate way for the deceased’s body to be given its resting place’.

Location, location, location: Making ones life in Kingston and that the deceased’s fiancée, father and brother wished him to be buried there outweighed the wishes of his mother, who was based some distance away, 70 years old and unable to drive[6].

Martin J[7] held that a dispute between parents as to the location of their son’s burial should be resolved ‘in a practical way paying due regard to the need to have a dead body disposed of without unreasonable delay, but with all proper respect and decency’.

In resolving disputes between those equally entitled to dispose of the deceased’s remains the court adopts a practical approach. It is accepted that it is often difficult to ‘weigh the competing claims and arrive at what one would truly call a legal judgment’[8]. Factors considered by the courts are the reasonableness of the (proposed) arrangements, the length of time which has elapsed since the disposal of the deceased’s remains, the wishes of those entitled, and the practical need for the disposal of the body without undue delay.

Procedure for disputes:

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 the Probate Court and/or within the inherent jurisdiction of the High Court[9] as part of the bigger issue of who should take a grant or extract letters.

The following issues have been identified as persuasive by Klein J: one, the deceased’s wishes; two, the reasonable requirements and wishes of the family who are left to grieve; three, the location with which the deceased was most closely connected; and, four, to quote the judgment, “the most important consideration is that the body be disposed of with all proper respect and decency and if possible without further delay”[10].

Mr Justice Vinelott[11] 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.”

Application to the Chancery Division pursuant to CPR 64 to ask for directions on the administration of the estate is an option. While scope is debateable it would include a challenge to the executor’s wrong decision and, in the author’s view, the choice of headstone or inscription on headstone (i.e. matters post burial) unless falling within ecclesiastical law.

Concluding remarks:

“I accept entirely that the courts should be slow to entertain proceedings such as these. Modern methods of refrigeration may make them possible, but they are certainly unseemly. They delay the proper disposal of the body and the normal processes of grieving, while bringing further grief in themselves.”[12]

Choose your executor carefully!

This article was first published in the February 2019 edition of PS, the magazine of the Law Society’s Private Client Section. For more information, go to http://communities.lawsociety.org.uk/private-client/.


[1] Borrows v HM Coroner for Preston [2008] EWHC 1387 (QB)
[2] Ibuna v Arroyo [2012] EWHC 428 (Ch)
[3] In Leeburn v Derndorfer (ibid) . in the Supreme Court of Victoria
[4] Fessi v Whitmore [1999] 1 FLR 767
[5] In University Hospital Lewisham NHS Trust v Hamuth & Others [2007] WTLR 309
[6] Hartshorne v Gardner [2008] 2 FLR 1681
[7] In Calma v Sesar [1992] 106 FLR 446
[8] Dodd v Jones [1999] SASC 458
[9] Anstey v Mundle [2016] EWHC 1073 at para 20
[10] Para 25 in Anstey (ibid)
[11] In Grandison v Nembhard (1989) 4 BMLR 140
[12] Buchanan v Milton [1999] 53 BMLR 176, Hale J, as she then.


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