Unfortunately, it is not uncommon for disagreements to arise between family members when there are conflicting opinions over funeral plans and lasting resting places for loved ones.
Simply mentioning in a Will that you are opting for cremation is not always sufficient information for Executors (who can be family members, close friends or solicitors) or the relatives who will have to decide afterwards when, where and how to dispose of the ashes. Executors often find themselves in delicate situations particularly after a client has passed away and they are forced to make decisions based on vague information.
So what happens when the person who has passed away has relatives or close friends with conflicting opinions and they all want to make decisions regarding the disposal of the body? Is there any hierarchy in this respect?
Ownership or Possession?
Due to the sensitive nature of the subject, parties will be advised, in most cases, to avoid disputes over a body or cremation ashes. The courts' reluctance to interfere in this type of conflicts should encourage people to leave clear directions regarding their funeral plans before they pass away. There have been cases where some relatives have thought they had the right of ownership over the cremation ashes of a loved one and they accused the Funeral Directors or the Crematoria for handing the ashes to the wrong person.
However, is it correct to talk about ownership or possession in this situation?
As Sir Edward Coke mentioned in his Institutes of the Laws of England, "though the heir has the property in the monuments and escutcheons of his ancestors, yet he has none in their bodies or ashes". In the circumstances, an interesting question was raised: If a human body cannot be owned when alive, why would it be possible to own it when dead?
In the Williams case it was clearly stressed that a body or the cremation ashes cannot be owned. The surviving relatives or the Executor can only have a right to custody of the body or the ashes but this does not mean that the person "owns" them. This also means that they have a moral duty to make the funeral arrangements.
Who has the last word?
This issue embodies several aspects, first of all, a distinction should be made between the situation when the deceased person leaves a Will and when he/she dies intestate.
When the person who passed away had left Will, then the "Executor who was appointed by Will is entitled to obtain possession of the body for that purpose even before the grant of probate". This means that the Executor will have a moral duty to make sure that the deceased's wishes and directions are respected without being bound by them. This means that he may or may not take the opinions of the deceased's relatives into account.
In the second scenario, when a person dies intestate, the hierarchy established in the Non-Contentious Probate Rules 1987 will be applicable and the highest ranked family member will have the right/duty to make the funeral arrangements. The hierarchy is as follows:
- The surviving spouse
- Surviving children or grandchildren
- The parents of the deceased
- Blood-related brothers and sisters or nieces and nephews in case of deceased siblings
- Blood-related uncles and aunts or cousins in the case of a deceased sibling in this category.
Disagreements that arise between family members who fall within the same ranking or category are even more difficult to settle.
Disagreements between family members within the same ranking
In the dispute between Fessi and Whitmore, the parents of a 12 year-old boy who died intestate could not reach an agreement with regard to the disposal of their child's ashes. This happened mainly because the parents were divorced and living at different addresses. The child's father wanted the ashes to be buried close to his address so that he could visit the grave. The mother on the other hand wanted to ashes to be scattered close to their previous address where they all used to live as a family and where the child's paternal grandparent's ashes had been scattered.
Both parties had equally convincing arguments according to the Court. However, it has been decided that the boy's ashes should be scattered where his grandparent's had been scattered because that was the place where they used to live together and it could therefore be the place where "all the family could have some focus". The fact that the child had just moved with his father before passing away did not have a major impact on the decision.
In a recent similar case, an unusual settlement was made by the separated parents of a boy who was killed in a traffic accident. The mother wanted to keep the ashes at her home while the father wanted to bury them. Even though both parents were next of kin and the child was in the care of his mother, only the father was entitled to collect the child's ashes. This happened because the father was the one who signed the contract with the Funeral Directors and who paid the bills.
In this particular case, the parents decided to make a compromise and split the ashes.
Measures to avoid disputes
You can take care of your loved ones even when you are no longer with them by preparing a Will and leaving clear directions in order to avoid any unnecessary stress when time comes.
We pride ourselves on providing Wills that give you complete peace of mind and legal assurance that your wishes will be carried out once you are gone so you know your family will be taken care of. You can contact us to discuss your individual requirements in further detail, we'd be delighted to help.
Also, if you are in a similar situation as the ones described above and you think that things have already got out of control, contact us today to see how we can help with your Wills, Trust and Probate legal dispute. Call us on 01603 693500, for appointments available at our Norwich, North Walsham, Brooke and Sheringham offices or email us using 'Make an enquiry' form.