Burials and Cremation
Friday, 6th May 2016
One of the areas that can exacerbate the already distressing situation following a death is where there is an argument about where the Deceased should be buried, or whether there should be a burial or a cremation.
It often comes as something of a surprise to the relatives to find that in law it is not possible to "own" the body. It cannot be bought, sold, or even stolen. As the phrase goes, "there is no property in a corpse". As a result, it is not possible strictly to enforce whatever the Will says about the disposal of the body. The only legal obligation regarding the body (which falls on the personal representatives) is a duty to dispose of it.
The two normal methods of disposal of a body are burial or cremation.
In the recent case of Valerie Anstey - v - (1) Sonia Mundle (2) Cynthia Allison (2016), the Court had to determine an argument in relation to the place of burial of the Deceased. The Deceased had been born in Jamaica but came to the UK in the sixties. He had last visited Jamaica in 1998. The Claimant was one of his daughters. The Defendants were another daughter and a niece. The Deceased had died leaving a Will that stated that he wished to be buried in Jamaica next to his mother. The Court considered that the relevant factors in determining the place of burial were: the Deceased's wishes, the location that the Deceased was most closely connected with, and the reasonable wishes and requirements of family and friends.
The Court took note of the Deceased's wishes expressed in the Will. It concluded that although the Deceased had not visited Jamaica since 1998 he had made no deliberate action to avoid Jamaica - and even if he had it would not follow that he did not want to be buried there. The Deceased also had been close to extended family who wanted him to be buried in Jamaica. As it could not be said that he had more ties in England, the Court concluded that it was proper for the Deceased's body to be released to the niece so that he could be buried in Jamaica - even though this meant that the Claimant was likely to have very little opportunity to visit her father's grave.
The wishes in the Will were only one of the "relevant factors" for the Court to consider.
In the earlier case of Fessi - v - Whitmore (1998) there was a dispute between divorced parents over where to lay the Deceased child's ashes. Their 12 year old son had died during a visit to his father in Wales. The remains were handed over by the Welsh coroner to the father, who without consulting the mother arranged for a cremation with a view to scattering the ashes off the Welsh coast. The mother wanted the ashes buried in the Midlands. The Court decided the parents were in a position similar to that of trustees, so the Judge should make a decision that did "justice" to both sides. The Judge concluded that the remains should be disposed of in accordance with the mother's wishes because there was a connection there with both sides of the family (as that was where the child's grandparents were buried). The Judge refused a suggestion by the mother that he should divide the ashes, as that would be "wholly inappropriate".
Disputes regarding the disposal of the Deceased's body are often particularly emotionally charged. It will be clear from these cases that in resolving disputes the Court tries to adopt a practical approach. Each case will turn on its facts, but as can been seen from Anstey - v - Mundle, the Court will do what it can to achieve a sensible, practical and fair result for all concerned.