When a loved one passes away, the last thing families want to face is a dispute over funeral and burial arrangements. However, due to emotional tensions, differing opinions and unclear legal directives, conflicts can arise.
Understanding how to handle these increasingly common disputes can ease the process and help honour the deceased’s wishes in a respectful manner.
At Terrells LLP, we are highly experienced in funeral and burial disputes, and in this comprehensive guide, we will explore everything you need to know about navigating these disputes to ensure you have all the right information and knowledge.
What Are The Most Common Causes Of Disputes?
Differing Family Wishes
Disputes often occur when family members have different opinions about how the funeral and burial should be conducted. This can include disagreements over the type of funeral service, the burial method, or even the final resting place.
It can also extend to who may attend the funeral and when the funeral will take place, to cases where members of the family have not informed other family members or friends of the funeral arrangements.
Legal Rights and Responsibilities
Confusion about who has the legal right to make decisions can lead to disputes. Typically, an appointed executor or the ‘next of kin’ assumes authority, but misunderstandings or a lack of clear legal documentation, like wills, can complicate matters.
Financial Issues
The costs associated with funerals and burials can be significant, and disputes may arise over who is responsible for these expenses. Financial constraints can also influence decisions about funeral arrangements, leading to potential conflicts among family members.
Religious and Cultural Differences
In multicultural families, differing religious or cultural beliefs about death and funeral practices can lead to conflicts.
What Does The Law Say?
When disputes occur, the emotional toll of grieving can exacerbate stress and upset. Therefore, it is important to prevent disputes from escalating by having a solid understanding of the relevant legal principles.
Generally, the law maintains that there is “no property in a corpse,” which means that a deceased’s body cannot be given away or included in a will like other property. Additionally, it cannot be bought, sold, damaged unlawfully, stolen, or used as security for debts.
Though it may seem self-evident that a body cannot be treated as commercial property, the legal implications are significant. Since a will typically addresses the distribution of property, the wishes concerning the disposition of a body, as stated in a will, are not legally binding. While these wishes might be considered during dispute resolution or court proceedings, they do not have definitive legal authority.
What Is The Order Of Priority?
Contrary to common belief, the right to arrange the disposal of a body does not automatically fall to the next of kin (surviving spouse or partner, or close family members). In fact, the term “next of kin” does not denote a legally recognised role with specific duties.
Instead, the individual who is legally obligated to dispose of the body holds the authority to decide how the funeral or burial should occur, with this right commencing at the time of death.
The hierarchy of authority is as follows:
- Hospital Authority – if the body is infectious, a hospital may detain it to prevent health risks.
- Coroner – the coroner has precedence to take temporary custody of the body to investigate the cause of death. Once their examination is complete, the body will be released.
- Executor – if the deceased left a will, the named executor is then entitled to take possession of the body. This is the same person who has the legal authority to manage the deceased’s estate.
- Intestate Succession – if no will exists, the right to possession goes to the person who has priority under the laws of intestacy, with priority starting with a surviving spouse or civil partner, followed by children, parents, and then siblings.
- Local Authority – should there be no close relatives or others willing to assume responsibility, the local authority where the body was found will handle its disposal.
In reality, the executor designated in a will primarily directs the funeral arrangements. In the absence of a will, the surviving spouse or children generally assume this role.
How Can Disputes Be Prevented?
Clear Will or Estate Plan
While the wishes may not be legally binding, ensuring that the deceased has a clear will or estate plan that includes directives about their funeral and burial can prevent many disputes. This should ideally be prepared well in advance, in consultation with legal professionals.
Family Discussions
Encouraging open discussions about funeral plans and preferences ahead of time can help mitigate conflicts later. These conversations should aim to reach a consensus or at least clear understanding among family members.
Prepaid Funeral Plans
One way to avoid disputes is through prepaid funeral plans, where the deceased arranges and pays for their funeral in advance. This not only eases financial burden but also minimises disputes about the funeral details.
What Are The Legal Considerations?
Right to Control Disposition of Remains
In most jurisdictions, the law specifies who has the right to control the disposition of a person’s remains. This is often an appointed executor, the spouse or next of kin. Understanding these laws is crucial.
Executor’s Role
If an executor is named in the will, they have the legal authority to make decisions about funeral and burial arrangements. Their decisions should align with the documented wishes of the deceased, if available.
Challenging the Will
In cases where family members wish to challenge the executor’s decisions or the directives in the will, they may seek legal help.
Our legal team at Terrells LLP are highly experienced in estate administration, including contesting wills and its executors.
How Are Disputes Resolved?
Mediation
If disputes do arise, mediation can be an effective way to resolve them. A neutral third party can help facilitate discussions and lead to a resolution that respects the wishes of the deceased and considers the feelings of all family members. This can solve issues quickly and cheaply.
Legal Intervention
If mediation fails, legal intervention might be necessary. This typically involves a court deciding based on legal documents and testimonies, with the main objective to ensure that the body should be disposed of with proper respect and dignity. In these circumstances, it is usual for the funeral, burial or cremation to be delayed.
Please be aware that in situations where the court is called upon, it can be a highly stressful, divisive and costly process, leading to irreparable damage to family relationships. This damage should not be understated.
If you are seeking legal advice relating to a funeral or burial dispute, our team of expert lawyers are on hand to support you through the process. Please get in touch with our legal team if you have any questions.
Counselling
Sometimes, underlying emotional issues drive disputes. Professional counselling can help families deal with grief and interpersonal conflicts, which might help resolve disputes more amicably.
How Can We Help You With A Funeral Or Burial Dispute?
Dealing with funeral and burial disputes can be challenging, but understanding the legal frameworks, encouraging open communication and using mediation can help manage and often prevent these conflicts.
If you need support navigating a funeral or burial dispute, including the administration of the estate and matters surrounding wills, get in touch at the earliest opportunity to avoid further escalation and find a route to a resolution quickly. There can also be a need to act swiftly in certain situations, as once the body has been buried or cremated, the court is unlikely to intervene.
We also have many years of experience in a range of family and estate planning matters, such as:
- Will Writing
- Lasting Powers of Attorney
- Applications for probate and letters of administration
- Family Law
- Children Law
We are fully regulated by the Solicitors Regulation Authority, have Family Law Advanced Accreditation and are members of Resolution, the UK Family Law Association.
If you require any further information about our range of services, or you would like to talk to an expert member of our legal team, then please do not hesitate to get in touch with us today.