​Post-mortem legal disputes: Ownership of Ashes

​Post-mortem legal disputes: Ownership of Ashes

When a person dies there are a whole host of legal issues to be considered. One of these issues which is often of fundamental importance to relatives and friends of the deceased is what will happen to the deceased's body and remains.

The law does not provide a comprehensive procedure for dealing with this issue. Instead, the law provides only a few strict rules, which can often be difficult for grieving relatives or friends to understand and accept.

One of these rules is that a corpse cannot satisfy the legal definition of 'property'. This means that the deceased's body cannot pass as part of their estate, and the deceased cannot direct in their Will that a particular person or organisation is entitled to have custody of it.

Furthermore, any directions contained in the Will concerning the disposal of the deceased's body are also not legally enforceable or binding upon the personal representatives of the deceased's Will. Although this is the case, a personal representative can have regard to the deceased's wishes and it may be that they feel a certain moral obligation to accommodate them.

If the deceased made a Will and appointed executors, they will have primary responsibility for disposing of the deceased's body. As the executors are able to make decisions about the form of disposal, they have a right to possession of the deceased's body until it is disposed of.

Conflicts can arise where the decisions of the executors in this respect differ from the views held by the deceased's relatives and/or friends. For example, the executors may propose to have the deceased's body cremated and lay the ashes in a place of which the relatives and friends disapprove. Equally the executors can disagree amongst themselves.

Case Study

Although it relates to a child, shows the types of issues that can arise. The mother of a child who had died whilst staying with her divorced husband in Wales brought a claim against him. The father had authorised the cremation of the child in Wales without consulting the mother, and sought to have the remains scattered off the Welsh coast. The mother objected and asked the court to order the ashes be scattered in the midlands, where the rest of the family lived. The court agreed with the mother, as the ashes would be scattered in the same place as other members of the deceased's family, providing a focus for the family generally.

Challenging these decisions is difficult because the courts are reluctant to interfere with the decisions of executors. The basis which disappointed relatives or friends have to challenge such a decision is on the grounds that it is unreasonable, or made deceptively or dishonestly.

If the parties cannot agree and ask the court to decide, the court will often take a practical approach. It considers the reasonableness of the proposed arrangements, the length of time since the deceased died, and the need to dispose of the body without delay but with dignity and respect for the deceased.

These decisions can not only be emotionally very consuming and stressful, but they can also be expensive if the court becomes involved. As a result, those making a Will should consider with great care who they wish to appoint as their executors and what they wish to happen to their body after their death.

If you have a legal query and would like to discuss your individual circumstances in further detail, our Private Client and Contested Probate specialist solicitors will talk you through your options and advise on the next step. Contact us today on 01603 693500 or email us using the 'Make an enquiry' form. Appointments available at our Norwich, North Walsham and Sheringham offices.

*This article is provided for general information purposes only and does not constitute legal advice or other professional advice.