It is a long and established rule since 1880 that a person’s body is not property and cannot be owned by anyone. Therefore, it does not form part of the estate and the beneficiaries cannot claim to have any rights over the body.
However, the personal representatives (executors or administrators) of an estate, the parents of a child who has unfortunately passed away or the local authority (if no other arrangements can be made) can act in the removal and organising of a ceremony for the person who has died.
As an executor or administrator of the estate, there are numerous issues which you must consider when dealing with a person’s body.
Conflicts regarding the body
Where there are issues regarding whether to bury or cremate the person’s body, or where to bury the body, the court will consider many factors. At the front of the court’s thoughts will be to ensure that the person’s body is dealt with respect and dignity (Anstey v Mundle ). In addition to this, the court will also consider:
If an issue is raised between family and friends of the person who has passed away, then the executors/administrators should call a meeting in the first instance in order to agree a way forward.
The deceased’s wishes
An executor or administrator of an estate has an obligation to dispose of the body in a proper fashion, even if they did not know what the person’s wishes were. Failure to do so will mean that the executor or administrator is committing a criminal offence.
Therefore, we always suggest that when making a will, that you should place your ceremonial wishes in there. Whilst they may not be legally-enforceable, it is highly-likely that your executor will act according you to your wishes.
Executors are allowed to incur costs that are reasonable or when they are provided for within the will. A judgement of whether costs are reasonable, depends on the circumstances of the person who has passed away (such as the value of the estate).
At Foskett Marr Gadsby & Head LLP, we have the expertise and the experience to guide you through the probate process. Should you wish to speak further about this with someone, then please contact our Wills and Probate Team.