We were recently involved in a matter where there was a dispute about the ownership of the body where the partner wanted one funeral arrangement and the next of kin (family) wanted another. Needless to say, the family did not get on with the surviving partner and had not done so for many years.
There follows over the next few weeks some thoughts and the law in relation to this subject. The law can sometimes be grey in this area.
These disputes appear to us to be more common these days probably as people live more complicated lives and often or not there are two or three families in a person’s lifetime. The other problem is that only one third of people have a will.
Ownership of a body can be a tricky thing and one will not be surprised to learn there is no legal property in a body. There is an exception where the body acquires a ‘value’ but that is beyond the scope of this article.
A person can posses a body for the purpose of disposal. This is where things get even trickier.
However, as a general rule there is an entitlement to possession of a body in the following circumstances:
If the deceased left a Will, the executor appointed under the Will is entitled to possession of the body – There is a case on this point.
The right of the Executor appointed under the Will “trumps” those of the family members without a grant. This was decided in a New Zealand case. In that case the Court refused to grant an injunction in favour of the widow who wished to cremate her husband’s body in opposition to the Executor who wished the body to be buried in the family plot.
Where the matter gets more complicated and difficult is as stated earlier where two thirds of people die without making a will. In that case the representative rights vest in those who take the grant of Letters of Administration and the rules of Intestacy apply.
This can lead to disputes between those with an equal entitlement to a grant such as children etc.
A parent of a deceased child has the right where the child left no spouse or children themselves.
In certain circumstances a householder in whose possession the body resides.
When the deceased dies in hospital, the hospital being in lawful possession of the body may arrange for the disposal of the body in certain exceptional situations.
This may apply where a personal representative has not been appointed or there is a dispute over the validity of the Will that cannot be resolved in a reasonable time frame.
The above scenario occurred in a matter in 2006. There was a dispute as the validity of the Will and the Court gave the Hospital National Health Authority Trust authority to the hospital to arrange the funeral.
In exceptional circumstances the local authority to the area in which the body was found if no other arrangements had been made.
The next of kin does not automatically have the right or responsibility to dispose of the body (another case decided this point).
However, the next of kin may be entitled as a personal representative.