Not many of us wish to consider this whilst we are alive. We assume that there will never be an argument about whether you are cremated or buried, or where you are buried. Unfortunately, with the modern family, this can become a problem.
In law, no one owns a corpse. However the primary duty to dispose of a body is down to the Personal Representatives or Executors. Should there be no one who is able to dispose of the body (under the strict sequence of entitlement), the Local Authority must dispose of the body.
As a general rule the executors have broad discretion as to how the disposal should occur. They are the trustees of the body. They must therefore consider what is appropriate for the deceased. They may look at the Will for any requests, listen to the opinions of relatives, or consider any points that may have been raised by the deceased during his lifetime.
Through a number of cases it has become clear that the Courts will rarely, if ever, interfere with an executors reasonable decision.
Unfortunately, problems can arise where there are two people who are of equal entitlement to dispose of the body. There have been cases where divorced parents have resorted to the to Courts in order to determine who should decide where their child’s body was buried. Judge’s often then take the view that the decision must be pragmatic and balanced. They look to the justice and fairness of both parents.
There have been numerous cases where parties have suggested splitting ashes, so that a compromise can be reached and each party can dispose of that portion of the ashes. Judges have been incredibly reluctant to agree to this. It should also be remembered that once a body has been buried, it is very difficult to obtain permission to have it “exhumed”. It must be demonstrated that there are exceptional circumstances or that a licence from the Secretary of State has been obtained.
Unfortunately, when conflicts arise in relation to burial or cremation, parties need to act quickly. A body cannot sit in a funeral partner indefinitely and decisions must be made with regard to ashes. Speed and compassion is in everyone’s interest. It is therefore beneficial for all parties to try to reach a quick, practical and reasoned solution. An independent party may be a benefit in these types of emotionally charged situations.
It may well be that a quick phone call to an advisor is enough to allow the parties to move forwards. However, in some circumstances full advice and a considered approach may be needed. Mediation or Alternative Dispute Resolution could well be appropriate in these types of scenarios.