Memorialising the dead

8  Memorialising the dead

Memorials offer a form of immortality for those who have died as well as the possibility of a continuing link between those who have gone and those who remain.¹

Introduction

While previous chapters have focused on the fate of the deceased’s mortal remains, memorialising the dead is often viewed as the final stage in the bodily disposal process. Marking the physical location of an interred corpse or ashes creates a focal point for mourning and remembrance.² More importantly, memorials denote the deceased’s life and passing in a particular way and, as such, symbolise ongoing (and very public) narratives of assoc iation between the living and the dead.³ We have already seen that an individual’s life is embedded in a network of relationships that their survivors are keen to nurture (and, in some instances control) after death.⁴ Memorials, like certain funeral rites, create a permanent and indelible memory picture of the deceased; who determines what form they take is an important question, and frequently a source of contention.

This chapter analyses the legal issues around memorialising the dead, focusing on graveside memorials⁵ to private citizens in churchyards and municipal cemeteries.⁶ Much of the emphasis is on permanent structures such as headstones, monuments and commemorative plaques; however, temp orary adornments and more transient commemorative acts (for example, placing keepsakes and laying flowers on the deceased’s grave) are also popular. Like bodily disposal, contemporary discourse highlights a number of recurring themes: a lack of clarity over the applicable legal framework (compounded by the fact that there are even fewer substantive legal rules around memorialisation); disputes between families and cemetery or church authorities over the form of memorial, as well as conflicts within families themselves; and the potential impact of human rights on this area. Memorialising the dead also raises its own distinct issues. The inherent public–private dichotomy adds another layer of complexity; memorials are, at the same time, “both intensely personal and manifestly public”⁷ and must straddle the boundary between suitable expressions of private grief, which are also appropriate acts of public remembrance.⁸ In addition, the emergence of Facebook memorials and other forms of ‘virtual commemoration’ have reshaped how the living remember their dead, while posing new legal challenges that have yet to be addressed.

I.     Churchyard or cemetery memorials

Gravestones and commemorative plaques are permanent markers placed at the head of a grave, with an inscription identifying the interred remains.⁹ Individual cemeteries and churchyards¹⁰ invariably have their own rules on what constitutes a permissible memorial; and while these are internal governance systems (as opposed to binding rules of law¹¹), they constitute part of the overall legal arrangement that binds each and every grave holder.¹² Exclusive rights of burial confer a right to inter one or more sets of remains in a particular plot;¹³ however, the right-holder does not ‘own’ the grave in any legal sense (though this is major public misconception¹⁴), and must adhere to churchyard or cemetery regulations around the design and dimensions of tombstones or plaques, and what objects can be left on the deceased’s grave.¹⁵

1.    Disputes between the deceased’s family and cemetery or churchyard authorities

Individual churches and local authorities are legally obliged to ensure that their burial grounds are safe places for both staff and visitors.¹⁶ Practical regulations often prohibit glass and metal containers, which might shatter and cause injury; leaving the deceased’s favourite food and drink on their grave is discouraged because it attracts vermin; and placing kerbing around a grave could constitute a tripping hazard.¹⁷ However, more complex issues arise where proscriptions are based on aesthetic values and the overall ‘appear ance’ of the cemetery or churchyard.¹⁸ Just as the socio-cultural rhetoric of funerals has changed in favour of more personalised, life-centred narratives of the deceased,¹⁹ so too has the way in which the living commemorate their dead. Families increasingly want personalised headstones or markers, which speak to the deceased’s identity in some way – but potentially breaching the rules around design and permissible wording.²⁰ While any epitaph is both emotive and intensely personal, it is also a very public and a permanent representation of the deceased’s identity. And while offensive wording would not be allowed,²¹ the boundary between what is humorous or quirky, and what is perceived as distasteful is not always easy to discern.²² Photographs on headstones (popular in a number of European countries) can also be contentious, with many cemeteries and churchyards throughout England and Wales operating a blanket ban on any visual representation of the dead.²³

Turning to more transient memorials, individual graves are often adorned with an array of keepsakes and paraphernalia such as teddy bears, football scarves, wind-chimes, solar lights, figurines and plastic flowers. Viewed by some as vibrant and deeply personal tributes to the dead, others claim that they detract from the calming and reflective nature of graveyards – and, in particular, that cluttering graves with tasteless items is intrusive and indicative of a consumer-oriented culture where the bereaved insist on whatever memorial they find appropriate.²⁴ Opting for the more traditionalist approach, many churchyards and cemeteries have strict rules around what can be placed on graves – regardless of the sensitivities of grieving relatives.

Numerous disagreements have been reported in the national media;²⁵ and, in at least one instance, a widow requested a faculty to exhume her husband’s remains because of what she felt were overly stringent churchyard regulations about placing floral tributes on his grave.²⁶

2.    Commemoration disputes within families

Memorials that comply with cemetery or churchyard regulations can still be the subject of a legal dispute where the deceased’s relatives cannot agree on the type of structure or – more usually – the form of wording to be used on the headstone. Simmering tensions and ongoing family feuds frequently come to the fore on death;²⁷ at some level, commemoration disputes are simply another example of this – especially within complicated family structures or where the deceased’s relatives are estranged from each other. However, the fact that the chosen inscription is a permanent and public record, not only of the deceased’s lifespan, but of selected family ties and close personal relationships, makes it highly symbolic and creates another layer of emotional complexity. Problems arise where someone is excluded from this narrative, or the wording chosen does not acknowledge their role in the deceased’s life. A good illustration is the Canadian case of Wiebe v Bronstein²⁸ where the deceased’s same-sex partner challenged the inscription chosen by the deceased’s sister (who had selected the gravestone as executrix under her brother’s will); the partner was omitted from the inscription, which referred to the deceased as a “beloved son, brother, uncle and friend”.²⁹

As a matter of law, any final decision lies with the person who has the exclusive right of burial in the particular plot. The leading statement can be found in Smith v Tamworth City County Council,³⁰ which involved a dispute between the deceased’s biological and adoptive parents, the latter having erected a headstone describing the deceased as their “much loved son” and making no reference to the biological parents. According to Young J, the right to decide on the appearance of the grave and any headstone (subject to compliance with cemetery by-laws) belongs to the person with the exclusive right of burial, and that was the adoptive mother in this case.³¹ However, the biological parents could not be denied access to the grave; according to the judge, the holder of the right of burial “cannot use his or her right in such a way as to exclude friends and relatives of the deceased expressing their affection for the deceased in a reasonable and appropriate manner such as by placing flowers on the grave”.³² Family and friends are entitled to visit a loved one’s grave, and to honour their dead in an appropriate way.³³

The holder of the exclusive right of burial may not be the deceased’s next-of-kin;³⁴ that person may not even be the deceased’s executor or presumptive administrator, unless they secured the interment rights in the plot in question or acquired the exclusive right of burial in a plot reserved by the deceased before his/her death.³⁵ The fact that the next-of-kin do not ‘own’ the grave plot can have unforeseen and unintended consequences, impacting not just on the form of memorial, but on their own ability to be interred alongside the deceased at a later date.³⁶

3.    Human rights arguments

As one might expect human rights arguments have also been raised in commemoration disputes (particularly since the passage of the Human Rights Act 1998), though not to the same extent as in legal contests involving the deceased’s mortal remains,³⁷ and with mixed results. In Jones v United Kingdom³⁸ the applicant argued that his rights under Articles 8 and 9 of the Convention had been breached when a local authority refused him permission to incorporate a photograph of his daughter on her memorial stone.³⁹ In declaring the application inadmissible, the European Court of Human Rights ruled that there had been no infringement of Article 8:

The regulations applicable to the cemetery required prior approval of all headstones and memorials. Notwithstanding the applicant’s personal preference for the addition of a photograph to the headstone and the fact that other burial authorities apparently gave permission for such features, the court does not find that the refusal of permission in this case can be regarded as impinging on the applicant’s personal or relational sphere in such a manner or to such a degree as to disclose an interference with his right to respect for private or family life.⁴⁰

Likewise, there had been no breach of Article 9; refusing permission for a photograph did not prevent any manifestation of the applicant’s religious beliefs, since he could properly pursue his religion and worship without a photograph on his daughter’s memorial. Although dealing with a different factual scenario (and with consecrated ground under the remit of ecclesiastical law), the reasoning in Jones was applied several years later in Re St Mary the Virgin Churchyard, Burghfield.⁴¹ A petition for a faculty to remove unauthorised graveside ornaments and edgings used to fence off graves was granted despite opposition from two of the families affected, the presiding Chancellor taking the view that neither Article 8 nor Article 9 was engaged on the facts.⁴²

Looking beyond Articles 8 and 9, insisting on a particular form of commemoration (for example, a gravestone inscription, which, by its very nature, is a public statement) could conceivably invoke the right to freedom of expression under Article 10 of the Convention.⁴³ While there is no direct authority on this point, substantively similar issues were raised in the Israeli case of ‘Jerusalem Community’ Funeral Society v Lionel Aryeh Kestenbaum.⁴⁴ Here, the respondent wanted to have his wife’s tombstone engraved with her name, Gregorian date of birth and Gregorian date of death in Latin characters as stipulated by his wife; the funeral society refused this request, relying on a term in its standard contract that no letters other than those of the Hebrew alphabet should be engraved on its tombstones. A majority of the Supreme Court of Israel held that this term was void because it violated the respondent’s right to freedom of expression, conscience and human dignity. However, the fact that graveyards and cemeteries are public spaces with numerous interments brings other interests into play. Even if the wording on a particular headstone came within the scope of Article 10(1), any right to freedom of expression is inherently limited by Article 10(2), which permits such restrictions as are “prescribed by law and … necessary in a democratic society”. Offensive or inappropriate language would almost certainly be rejected on this basis.

II.   Virtual memorials: Commemorating the dead ‘online’

With the advent of the digital age, we spend increasing amounts of our time in the virtual world⁴⁵ – interacting, transacting and generating assets online. The question of how those assets are disposed of or transferred when someone dies has become an important estate planning issue, because established succession laws do not deal effectively with digital assets.⁴⁶ However, the post-mortem management of an individual’s digital persona raises equally complex issues, as social networking services (‘SNS’) funda mentally reshape how the living remember their dead.⁴⁷

1    Virtual memorials

For most people, the interment of human remains still takes places in a cemetery or churchyard. Yet acts of memorialisation now extend beyond the traditional headstone or grave marker adorned with a smattering of grave goods. Virtual cemeteries, available since the 1990s, are interactive resting places for the dead, where the bereaved can visit, leave tributes and erect headstones at a loved one’s virtual grave.⁴⁸ Much more common is the conversion of the deceased’s own online social media profile into a memorial site, the most common examples occurring on Facebook.⁴⁹ Instead of simply removing the deceased’s profile, the individual’s family (or certain nonrelatives) can apply to Facebook to have the page converted into a mem orial;⁵⁰ this can only be accessed by the deceased’s existing Facebook ‘friends’, and can potentially remain in place indefinitely. The same ‘friends’ can visit the memorial page as often as they wish, posting their own personal tributes and messages of support for each other, as well as leaving messages for the dead.

In some ways, virtual memorials resemble physical ones. For example, they “relocate the deceased to a place which is accessible but separate from the spaces usually occupied by the living”,⁵¹ allow people to share their feelings and memories in a public forum,⁵² and to post formulaic messages similar to those found in sympathy cards and death notices.⁵³ Yet, while things like Facebook posts allow the deceased’s family and friend to engage in ritualised behaviours “akin to [those] … performed at … cemetery visits”, these collect ive acts of remembrance differ because they are “public, virtual, eternal and direct”.⁵⁴ Online memorials are much easier to visit than cemeteries, allowing the deceased’s family and (online) social network to interact with each other in a way that they would not be able to physically – given the geographically disparate kinship and friendship networks that most individuals are part of today.⁵⁵

Unlike the traditional headstone or grave marker, which can only record a limited amount of information and is constrained by social conventions (most document the deceased’s lifespan and their primary relationships, based on traditional constructs of ‘family’), virtual memorials are not about lineage; they incorporate the wider family circle, and are a marker of friendships and social networks that the deceased was an active part of in life.⁵⁶ Another important factor is that the deceased’s identity is not fixed at the time of their death; since virtual memorials are dynamic and interactive sites of memory sharing, they allow “postmortem identities … to be [continually] crafted and preserved”.⁵⁷ However, a unique feature of Facebook and other SNS memorials is a marked tendency to communicate directly with the deceased by posting messages to that specific individual in a very public forum.⁵⁸ It is not simply a case of maintaining the deceased’s presence in everyday life; the living actively engage in ongoing narratives with the dead, who “never really die” but are “perpetually sustained in a digital state of dialogic limbo”.⁵⁹ In some ways, this practice suggests a new variant of spiritualism and the afterlife; the perception that “the dead live in the virtual cloud, and can hear or read the messages from the living” high lights a “sustained belief in an afterlife … despite the increase in secularity brought about by modernity and mass media”.⁶⁰ However, there is also a sense in which Facebook and other interactive, online memorials blur the distinction between the virtual and real worlds, and prevent users from confronting the reality of death and loss.⁶¹ Physical death may have occurred, but an individual will only truly have died when their online presence is removed.⁶²

Unsurprisingly, the internet has fundamentally altered the interface between public and private grief, and there is a significant volume of literature on how SNS in particular impact on death, grieving and memorialisation. Some have questioned whether online interactions actually help people to grieve in a ‘healthy’ way. McManus, for example, suggests that virtual acts of remembrance potentially undermine the capacity to connect at [an] interpersonal level”,⁶³ while Moss posits that ongoing communications with the deceased (something that the virtual world facilitates) disrupt normal grieving processes because the living refuse to ‘let go’ of their dead.⁶⁴ Online memorials can also be damaging to the deceased’s family, and not just because they cannot control the content.⁶⁵ These focus on the individual’s virtual identity which, to some extent, is an artificial construct that close relatives might feel inclined to manage in some way;⁶⁶ there may also be doubts around the sincerity of multiple outpourings of grief from a wide cohort of social media ‘friends’,⁶⁷ while concerns have also been expressed that Facebook is “too casual a medium for a weighty topic such as grief and grieving”.⁶⁸ At a more fundamental level, next-of-kin can also feel marginalised by the fact that SNS distort the sense of who is actually ‘bereaved’ when someone dies.⁶⁹ However, others argue that SNS and virtual memorials can be a highly effective forum for grieving and forming vital support networks. As Lingel points out:

A critical affordance of online grief is the ability to craft individual responses to death in an open venue less constrained by still inchoate social and cultural obligations than a funeral home or cemetery.⁷⁰