Burial and cremation disputes

One of the areas that can exacerbate the already distressing situation following a death is where there is a disagreement 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, as in law it is not possible to "own" the body, it is not possible strictly to enforce whatever the Will says about the disposal of the body.  Therefore, even if the deceased specifies how they want their body to be disposed of, there is no legal obligation on anyone to follow this. 

Another common misconception is of who is entitled to make the decision about disposing of the body. Often, it is believed that it is the next of kin who is entitled to make the decision.  However, the law provides that the only person with authority to dispose of the body (which includes choosing the method of the disposal) is the personal representative.  Therefore, there is often little that other family members can do to override this.

In most cases the arrangements for disposal are agreed between the family members and the personal representative (who will often be a family member too of course), but if no agreement can be reached before the funeral, a person disputing the method of disposal will have to act quickly to prevent the disposal from going ahead. He or she may even have to apply to the court for an interim injunction to prevent the disposal.  Given the costs associated with an application to Court however we strongly recommend seeking specialist legal advice before taking such a step. The Court will treat disputes of this type in the same way as any other dispute, so the Courts will be prepared to make an order for costs against an unsuccessful applicant.

If you would like advice on a burial or cremation dispute, or indeed on any other will, inheritance or trust dispute, please contact our Disputed Wills and Trusts Team by telephone on +44 (0)1884 203 018 or FREEPHONE 0800 0931336, or by email willdisputes@ashfords.co.uk

Key Contact

Robert Horsey

Partner and Location Head, Tiverton

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+44 (0)800 0931336

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