A death can sometimes bring opposing family views to the fore, particularly when deciding burial, cremation and funeral arrangements. If the deceased left wishes for the disposal of their body, such as in their will, then often this will prevent a dispute from arising.
However, where the deceased was silent as to what they would like to happen when they die, this can leave room for dispute. Further, whilst the deceased may have left wishes for the disposal of their body, the personal representatives of the estate are not bound by them.
With cremations an increasingly popular choice, it is important to consider who has the right to arrange a cremation, who can receive the ashes and decide where they are scattered, and what happens if there is a disagreement over these issues.
Who has the right to arrange the disposal of a body?
If the deceased left a will, the will should appoint an executor. In England and Wales, it is the executor/s responsibility to take possession and arrange for the disposal of the deceased’s body.
If the deceased did not have a will, this means that they died intestate. The individual(s) entitled to a grant of letters of administration (as determined by The Non-Contentious Probate Rules 1983, rule 22) shall have the right to arrange the disposal.
It therefore falls to the personal representative/s of the estate to arrange disposal, including cremation.
Who can receive the ashes?
Section 30 of The Cremation (England and Wales) Regulations 2008 states that the authority in charge of the cremation must dispose of the ashes in accordance with the instructions of the person who arranged the cremation.
If no instructions were provided or the ashes are not collected, the authority is allowed to dispose of the ashes in a burial ground or a part of the crematorium reserved for this purpose.
It is only exceptionally that an authority may release the ashes to another individual, and this is entirely at their discretion.
What happens if there is a disagreement?
The personal representative and beneficiaries should try to reach an agreement where possible to avoid any further breakdown in relations, and legal costs, if litigation ensues.
However, if no agreement can be reached, directions can be sought from the court as to what should happen. An application could also be made to the court for a limited grant of administration to deal with the disposal of the body.
What factors will the court consider?
When dealing with disputes of this nature, the court will consider the following:
- The wishes of the deceased.
- The wishes of family and friends.
- The place where the deceased was most closely connected with.
- Practicalities (such as if the body or ashes are held abroad).
In the case Read v Hoarean [2024] EWHC 3274 (Ch), whilst it was agreed that there would be a cremation, there was a disagreement as to what should happen to the deceased’s ashes. The mother of the deceased wanted the ashes to be divided between her and the deceased’s father, however the father opposed this. The deceased’s wishes were unknown, although he had a close connection to his father and had lost contact with his mother in the last few years of his life.
Applying the above factors, the judge ruled against a division of the ashes and ordered that the ashes should be scattered in Dartmoor – an area identified by the father, other family members and friends as one where the deceased had felt at peace.
Summary
The disposal of a body is an extremely sensitive topic, and a very important responsibility for the personal representatives of an estate. This is particularly so where the deceased’s views on the issue are unclear, and opinions amongst family are mixed. It is therefore important that you are aware of who has the right to arrange the disposal of the body, and what your options are if disagreement leads to deadlock.
If you find yourself in a dispute of this nature, please do not hesitate to contact our specialist Inheritance and Trust Disputes team who would be happy to advise you on your position. Or call us on 0345 540 5558.