WHOSE DECISION?

In the course of preparing Wills over the last 40 years, I have often been asked the question as to who is responsible for the disposal of the deceased’s remains.  Many testators wish, in their Wills, to express a desire, to perhaps be buried or cremated, and sometimes they express a wish as to where this should take place.  Interestingly, more and more people are looking at natural burial, which apparently is ecologically more friendly.

I remember, very clearly, many years ago doing a Will for a gentleman whose funeral instructions took the first two pages and included the exclusion of all women from the funeral service, and a piper playing a lament.

The law on the subject is reasonable straightforward.  A Will is intended to dispose of your property, and there is no property in a dead property.  Thus, any directions given by the deceased as to the disposal of their body is not enforceable as a matter of law. Furthermore, it is not unknown for a Will to take several days to find by which time the funeral might well taken place, and so there is a practical consideration when expressing funeral wishes.

Generally speaking the authorities have established that the Executor of a Will usually has the right to make arrangements for the disposal of the body.  The Executor may accede to the testator’s wishes but is not bound to.

It is also established that at common law it was the duty of the householder, under whose roof a person had died, to make arrangements for a dignified and decent burial.   All these fascinating facts came together recently in the case of Lewisham Hospital NHS Trust –v- Abdul Sada Hamuth and 12 others.

In that particular case the deceased made a Will appointing Mr. Hamuth as his Executor, and the Will indicated that the testator wished to be cremated.  At the time he made the Will he was in a nursing home and was subsequently moved to hospital where he died.  After his death the body was kept in the hospital mortuary because there was an embargo placed upon it by the Police.  Subsequently the embargo was lifted, and the Executor indicated that he wanted the body to be released to him for cremation.  The other Defendants in the case were the deceased’s next of kin, and they wanted to have the body released to them to be buried in the family plot.  As it happened they argued that they were intending to oppose the deceased’s Will, and that if they were successful then the Executor would be left with no authority, and could not therefore take responsibility for the funeral.

The matter was heard before the Chancery Division of the High Court on the 23 January 2006.  There the Judge decided that, firstly there was a genuine dispute about the Will, and its validity, which meant that there was a dispute about the Executor’s appointment.  Secondly, as mentioned above, the Executor generally has the right to dispose of the body, and the deceased’s intentions were not enforceable.

In this case the Judge decided that the hospital trust, where the remains were kept should deal with the disposal of the deceased’s remains, this being because they had lawful possession of the body, and therefore the decision as to its disposal should be left to them.

It appears that the hospital trust had decided to go along with the family.  The Judge stated “I should say that the arrangements which the claimant currently envisages making once the process of the post mortem examination has been completed is, as I understand it, to allow the family to make arrangements for the burial of the deceased in the family plot, there is no reason to suppose that that is not an entirely appropriate way for the deceased’s body to be given its resting place”.

It is, of course, understandable that people do have very strong feelings as to how they, and perhaps even relatives, should be disposed of.  Often these views are driven by belief.

There is nothing to prevent anybody incorporating a clause in their Will with funeral instructions, but they should understand that these are not binding upon the Executors.  For practical purposes too, it is probably better to advise Executors and next of kin as to any strongly held wishes or beliefs, so that they can be carried out.

April 2007