What to know about burial disputes and the right to possession of a deceased's body

Alistair Spencer of Shakespeare Martineau explains how burial disputes can arise and what the law says about the right to possession of a deceased’s body.

Why do burial disputes occur?

Over the past few years, there has been an increasing number of disputes regarding funerals and the burial/cremation of bodies. The increase in second and third families, more dispersed families, more complex family relationships and less involvement in organised religion, with a move away from traditional views regarding burials and the treatment of ashes, are some of the factors behind this increase.

The death of a family member can bring out hidden rivalries and differing views as to the deceased’s wishes on a number of areas, including funeral and burial arrangements, particularly if the deceased did not clearly set out their intentions.

Who has “ownership” of a deceased’s body?

When it comes to burial disputes the question of ownership of the deceased’s body often arises. It was established back in 1857 in the case R v Sharpe [1857] that the “law recognises no property in a corpse”.

This was later cited in the case of Williams v Williams [1882] which confirmed that there can be no property in a deceased’s body. In 1999 this was reemphasised in the case of Buchanan v Milton [1999] when Baroness Hale said: “There is no right of ownership in a dead body. However, there is a duty at common law to arrange for its proper disposal. This duty falls primarily upon the personal representatives of the deceased”.

Who has the right to possession of a deceased’s body?

If the deceased left a will and appointed a personal representative (PR) then they will have the right to possession, not ownership, of the body (Sharp v Lush [1879] & Dobson v North Tyneside Health Authority [1997]). The PR also has a duty to arrange for the disposal of the body (Williams v Williams [1881] & Rees v Hughes [1946]).

Whilst a PR will usually honour the deceased’s wishes regarding their funeral and the disposal of their body, a direction contained within a will as to the disposition of the testator’s body cannot be enforced (Williams v Williams [1881]).

If the deceased died without a will (intestate), then the person(s) entitled to a grant of letters of administration for the deceased’s estate follows this order of priority (Rule 22 of The Non Contentious Probate Rules 1987):

the surviving spouse/civil partner
any children
any of children of the children (i.e. grandchildren), if their parent has died

That individual (or individuals) will ultimately have lawful possession of the body and the right to deal with the funeral and the disposal of the body, including the location of any burial. If the deceased was unmarried but had a surviving partner, then they would have no rights if there was no will.

Whilst there is no right of ownership in an unaltered body, it should be noted that the position can be different when the body has been altered by some process. In the case of R v Kelly [1999], for example, the judge stated that: “parts of a corpse are capable of being property […] if they have acquired different attributes by virtue of the application of skill, such as dissection or preservation techniques for exhibition or teaching purposes”.

A prime example of this would be Dr Gunther von Hagens and his plastination of human bodies, which are shown in his body works exhibitions, or even mummies. These bodies appear to fulfil the criteria set out in R v Kelly for a body to become property capable of being owned, and in the case of mummies they are sold, indicating they are viewed as property.

Who has ownership of a deceased’s ashes?

Whilst there has yet to be a clear judgement on whether ashes are property, and therefore capable of being owned, if the line of thinking set out in R v Kelly is followed, then due to the application of skill (the cremation itself) and the body achieving different attributes (its transformation into ashes), then the ashes could be considered to be property. There can, however, be no doubt that the container holding the ashes is property and therefore subject to ownership.

s.30 of The Cremation (England and Wales) Regulations 2008 (as amended) addresses the disposal of ashes after a cremation. It states that the cremation authority must dispose of the ashes in accordance with the instructions of the person who applied for the cremation. Where no instructions are provided by that person or where the ashes are not collected in accordance with those instructions, the cremation authority may dispose of the ashes in a burial ground, or a part of crematorium reserved for the burial or scattering of ashes.

In exceptional circumstances the cremation authority may at their discretion release the ashes to someone other than the applicant or the applicant’s nominee.

What happens if people disagree about how a body should be buried?

Frequently, individuals who have the same right of priority to deal with the burial will have differing views on what the deceased would have wanted. In the event of deadlock in relation to the deceased’s burial arrangements then an application could be made to Court for a limited grant of administration to dispose of the body or directions could be sought from the Court to break that deadlock.

If no close family member has survived the deceased, or if they do not wish to be involved, then the Local Authority covering the area in which the deceased died ultimately has responsibility for sorting out the funeral arrangements and the disposal of the body (s.46 of the Public Health (Control of Disease) Act 1984).

How can the Court intervene in burial disputes?

The Court can intervene in burial disputes in a number of ways:

Following an application made pursuant to Part 64 of the Civil Procedure Rules (CPR).
Pursuant to its inherent jurisdiction – an example of this being the case of Hartshorne v Gardener [2008]).
Under s.116 of the Senior Courts Act 1981 – this allows the Court to appoint an administrator who does not have priority where “special circumstances” make it “necessary or expedient”.

The court will consider four key “special circumstances” when dealing with burial disputes (as set out in Hartshorne v Gardener):

The wishes of the deceased.
The level of the deceased’s connection to proposed burial places – the court will usually favour the place the deceased is most closely connected with.
That the body is buried or cremated with the least possible delay and in a respectful manner.
The wishes of close family and friends.

What happens if there are disagreements about the location of the burial?

If there are disagreements about the location of the burial, the Court will judge on a case-by-case basis.

Hartshorne v Gardener [2008]

In Hartshorne v Gardener [2008], the Court released the body under its inherent jurisdiction to the deceased’s father to be buried at a place the deceased had a close connection to. That place was where the deceased had lived, worked and where his close friends and fiancée where based. That close connection was seen as the “overriding factor” in deciding where the deceased should be buried and outweighed the mother’s desire to have him buried in the city she lived in. It was stated in this case that “the most important consideration is that the body be disposed of with all proper respect and decency and, if possible, without further delay”.

Anstey v Mundle [2016]

In Anstey v Mundle [2016], the Court had to decide whether the deceased should be buried in Jamaica where he had been born or in England where he had lived and died. Applying the ‘special circumstances’ from Hartshorne v Gardener, the Court considered that he had set out in his will his wish to be buried in Jamaica. Jamaica was the country he was most closely connected with and the majority of his family agreed he should be buried there. His body was therefore to be released to his niece in Jamaica for burial there.

Otitoju v Onwordi [2023)

More recently, in the 2023 case of Otitoju v Onwordi the Court considered competing applications to determine the funeral arrangements for the deceased. The deceased’s daughter (supported by her other siblings) sought an order allowing her to take possession of the deceased’s body and arrange its burial/disposal. She also sought, and was granted, an interim injunction against the deceased’s partner to prevent her from taking possession of the body and arranging its burial/disposal. In part claiming the deceased died intestate.

The deceased’s partner sought to set aside the interim injunction relying on a will she claimed had been made by the deceased and within which she and her daughter were named as executors. The will was unsigned but bore the deceased’s fingerprint (sufficient to meet the execution requirements under the Wills Act 1837) and was on its face valid.

The daughter claimed special circumstances applied as the will was being challenged and therefore the deceased’s funeral arrangements should not be made by the executors named in the will. The Court found these did not justify overriding the position of the executors under s.116 of the Senior Courts Act 1981 and the executors of the will were entitled to possession of the body and responsible for making the funeral arrangements.

Summary

Due to their nature, it is essential to act quickly when it come to a burial dispute and before there has been an interment or scattering of ashes. If necessary, urgent injunctions can be applied for to prevent a burial and allow the Courts the opportunity to rule on the dispute. However, most disputes of this nature are resolved by compromise at what is an already deeply upsetting time for the family.

About the author

Alistair Spencer is a Legal Director in the Inheritance Disputes team at Shakespeare Martineau. He specialises in contentious trusts and probate. He represents private individuals, charities, trustees and executors in a wide range of matters.