Examining the legal duty to effect a burial

This article was first published on Lexis®PSL Private Client on 4 August 2016. Click for a free trial of Lexis®PSL.

Private Client analysis: An argument about where the deceased should be buried, or whether there should be a burial or a cremation, can exacerbate an already very distressing situation following a death. Robert Horsey, partner at Ashfords, considers the recent case of Anstey v Mundle and another, where the court had to determine an argument about where the deceased should be buried.

Original news
Anstey v Mundle and another [2016] EWHC 1073 (Ch), [2016] All ER (D) 285 (Feb)
The Chancery Division held that, on the facts, it would be most proper for the deceased’s body to be buried in Jamaica, rather than England. However, in the light of the authorities, the court could not determine or direct where or how the deceased would be buried, but could direct who had the power and duty to bury the deceased. Accordingly, it was ordered that the duty would be imposed on the deceased’s daughter who was more able to give effect to a Jamaican burial.

What’s the background to the case?
The deceased had been born in Jamaica, but came to the UK in the 1960’s and worked as a transport engineer. Although he had a property in Jamaica at the time of his death, his last visit to the island was in 1998 for his sister’s funeral. The deceased had three daughters—Valerie, the claimant, who lived in London, Stephanie, who lived in Jamaica but supported the claimant, and Sonia, the first defendant, who lived in London. The second defendant was Sonia’s daughter, Cynthia. The deceased’s last Will, the validity of which was disputed, stated that the deceased wished to be buried in Jamaica beside his mother.
Following the deceased’s death, the claimant made an application for an injunction to restrain the removal of the body as she was concerned that it may be removed from the jurisdiction for burial in Jamaica.

What were the legal issues in this case?
It has long been recognised that there is no property in a corpse (see Williams v Williams (1880) 20 Ch D 659) so the body does not form part of the estate and beneficiaries have no rights over it. However, although no one can own the body, certain people can have a right to possess it. The personal representatives of the deceased are generally responsible for disposing of the body.

Section 116 of the Senior Courts Act 1981 (SCA 1981) gives the High Court power to pass over a person who would otherwise be entitled to a grant of representation and to appoint such other person as the court may in its discretion think expedient.

What did the judge decide?
The court directed that the application should be heard by a judge to consider to whom the grant of representation should be issued under SCA 1981, s 116 so that a limited grant for the disposal of the body could be issued.

However, the judge took the view that he was being asked to decide, for the purposes of a limited grant, who should be entitled to the grant, rather than considering whether to pass over the person who would otherwise be entitled to the grant. He therefore made his decision on the basis of the court’s inherent jurisdiction to regulate the administration of an estate rather than on SCA 1981, s 116.

The judge considered the deceased’s wishes as expressed in the disputed Will, and also as expressed verbally to a friend, that he wished to be buried in Jamaica. He also took into account the requirements and wishes of the family, and considered the place with which the deceased was most connected, having lived in the UK for the last 40 years. He was also concerned to ensure that the body should be disposed of with proper respect and decency and without further delay.

After considering all of the relevant evidence, the judge decided that the deceased should be buried in Jamaica. He concluded that, although the court was not able to direct where or how the deceased was to be buried, it could determine who had the power and duty to effect the burial. In light of his conclusion that it would be most proper for the deceased to be buried in Jamaica, he ordered that the duty to effect the burial was imposed on the defendants.

How common are cases like this, where there is contention between family members over where the deceased should be buried, particularly when the Will provides for burial issues?

Sadly there are often disagreements among surviving family members regarding funeral arrangements. It is relatively rare however for these disputes to go to a trial. In most cases, where a Will provides for burial issues there is no scope for argument—unless, as in this case, there is a dispute as to the validity of the Will itself and there is no earlier Will that makes similar provisions.

What can practitioners take from this?
From a practitioner’s perspective, the best way to avoid a dispute is to advise the testator to discuss funeral wishes with the family to make sure that everyone is clear what they want, and then record those wishes in writing. If they do not do so, there is a real risk that in some cases the surviving family members may spend a large proportion of what they would otherwise inherit on a dispute that they might otherwise have been able to avoid.

Interviewed by Alex Heshmaty.
The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

Please contact our Disputed Wills and Trusts Team by telephone on freephone 0800 0931336, or by email at willdisputes@ashfords.co.uk for a no obligation chat to see how we can help you.