Disposal of the dead: Legal rights and responsibilities

3  Disposal of the dead

Legal rights and responsibilities

Disposal of the dead is a necessary, however unpleasant, task imposed upon the living.1


Historically, English law granted everyone the right to a “Christian burial”2 with a full Church of England burial service and attendant funeral rites.3 A modern variant is still recognised in most common law jurisdictions today – though reinterpreted as including both interment and cremation,4 and denoting disposal of the body in a dignified manner as opposed to imparting any specific religious dimension.5 The underlying reasons for this basic entitlement were twofold and remain central to the law’s treatment of dead bodies: ingrained notions of human dignity and respect for the dead,6 and public health concerns around the prompt disposal of a decaying corpse.7

To ensure these objectives were met, certain individuals were under a common law duty to dispose of the dead, with a correlative right to possession of the body for this purpose and full decision-making powers over what form the deceased’s funeral should take. This possessory entitlement is an exception to the general rule that there is no property in a corpse.8 It also generates important legal entitlements, which form the basis of this chapter and map onto other issues surrounding disposal of the dead.9

I.     Duty of disposal and right to possession of the corpse

In England and Wales the duty of disposal and right to possession of the corpse (or its ashes following cremation10) is still governed by old common law rules.11 These derive from long-standing principles around estate administration and liability for funeral expenses;12 and while the underlying rationale has occasionally been questioned, the rules contemplate a clear order of entitlement.

1.    The legal framework

Primary responsibility falls on the deceased’s personal representatives as dictated by succession law rankings.13 Where the deceased made a will, this is the executor14 who is entitled to possession of the body before the grant of probate,15 unless there are doubts over the will’s validity16 and a grant of probate is doubtful due to non-compliance with testamentary formalities or lack of capacity. A good illustration is Privet v Vovk,17 in which an elderly stroke patient in a nursing home married a young male carer shortly before her death, and made a new will appointing him as executor and principal beneficiary of her estate. The court ruled that the deceased’s son should make the funeral arrangements; given the deceased’s mental state, there were serious doubts over the validity of the will and the marriage.18 Technicalities aside, the executor rule is also subject to practical limitations – for example, the executor knowing that they are entitled to make the funeral arrangements, or not being formally identified until days or weeks after the deceased’s death by which time the funeral has already taken place.

If the deceased died intestate, the law looks to the highest ranked next-of-kin as the person entitled to a grant of administration over the deceased’s estate if one were sought19 – what we might term the ‘presumptive’ administrator.20 Under s 46 of the Administration of Estates Act 1925 in England and Wales, this is the deceased’s spouse21 or civil partner,22 followed by children,23 parents and siblings, then other specified relations in descending order of consanguinity. The highest ranking relative has the final say on disposal of the deceased’s remains.24 However, an intestacy-linked classification has two main drawbacks, the first of which is its potential to exclude certain individuals where legal constructs of family based on ‘blood’ or normative views of kinship do not match social or cultural realities, or reflect “the closeness of the deceased’s relationships in life”.25 For example, step-families and cohabiting partners do not qualify as next-of-kin under English law, and would not be entitled to possession of the deceased’s remains if someone within the ‘traditional’ nuclear family model insisted on different funeral arrangements;26 in multi-ethnic societies, cultural notions of kinship and decision-making powers within families may also be at variance with this legal classification.27 Second, the intestacy framework is ineffective where two or more persons fall within the same kinship tier and have equal rights but different views on the deceased’s funeral; where parents, siblings or children of the deceased cannot agree, courts must find another way of ranking the competing claims.28

At common law, a husband was under a duty to bury his wife’s remains,29 though this is probably a residual category today given the spousal doctrine of separate property, the economic independence of women and the superseding role of the executor or administrator when there is a (potential) estate to administer.30 The result is that personal representatives can determine the funeral arrangements in the majority of adult deaths. As regards infants or minors, the duty of disposal falls jointly on the parents31 though courts will differentiate between different sets of parents. The rights of adoptive parents prevail over those of natural or biological parents32 – hardly surprising given the permanency of the process and its legal consequences.33 And while we might assume that natural parents outrank foster parents (given that fostering tends to be a temporary care arrangement), case law suggests a fact-specific approach. In R v Gwynedd County Council, ex parte B,34 the court ruled in favour of the natural mother who wanted to bury her daughter beside the child’s father in the family burial plot, despite objections from the girl’s foster parents who had cared for her since she was a few weeks old.35 The role of the local authority (which had placed the child with foster parents) ceased on death, at which point the duty to bury reverted to the natural parents.36 A slightly different factual scenario arose in Re LL (Application for Judicial Review),37 which involved a dispute over a terminally ill 11-year-old boy.38 The child’s mother wanted to bury him in the same grave as her grandfather; the foster parents wanted to bury him in a cemetery close to where the boy had lived with them and their three daughters for seven years. Unlike Gwynedd, the court ruled in favour of the foster parents here; the child had been freed for adoption without parental agreement two years earlier, with all parental rights and duties being extinguished from the date of that order. As a result, the health trust with responsibility for the child could allow the foster parents to arrange his funeral.39

Moving beyond minor children, where all other options have been exhausted and there is no-one with a higher ranking claim, responsibility for disposing of the deceased’s remains falls on the householder in whose premises death occurred.40 Though probably not all that relevant today, given the ease with which family members can be identified and contacted,41 it has been suggested that a “logical extension”42 of the householder rule is a similar duty of disposal on a hospital or equivalent institution if the individual died there and no family members claim the body.43 Finally, the obligation to bury or cremate unclaimed remains falls on the local authority with control over the city, town or district in which the body is found44 – a last resort option, which ensures that the dead are disposed of where there are no relatives to make the arrangements.45

The duty of disposal generates a legal right to possession of the corpse for this purpose, which courts will protect and uphold if necessary.46 And in family disputes concerning the fate of the dead, the legal framework outlined above provides an essential reference point; when warring factions cannot agree, the highest ranked individual usually has the strongest entitlement.47 In most cases the executor or presumptive administrator will have the final say, though the origins of this particular rule were heavily criticised by two members of the Supreme Court of New Zealand in its recent decision in Takamore v Clarke.48 Both Elias CJ and William Young J suggested that supporting authority49 for the executor rule was limited and more concerned with payment of funeral debts than the fate of the dead; as such, there was “no clear basis”50 for an executor being entitled to possession of the deceased’s remains above everyone else (including the deceased’s family, where the executor was a non-relative). The presumptive administrator’s role was also open to question, given its origins in estate distribution51 and the fact that the executor rule was simply extrapolated onto intestate deaths.52

Other decision-making powers around the fate of the dead are firmly entrenched within a family or kinship paradigm.53 However, the common law rules on bodily disposal are well-established, and unlikely to change without a comprehensive re-evaluation of the law in this area.54 In the meantime, what is becoming increasingly clear is that courts are unwilling to regard the executor or presumptive administrator’s right to possession of the deceased’s remains as an absolute entitlement that overrides all other competing claims to take charge of the funeral arrangements. The entitlement now appears to be a prima facie one, which can occasionally be displaced.55

2.    Content and scope of the right to possession

The right to possession is purposive and transient; it is a custodial right that exists solely for disposal,56 arises at the moment of death and lasts for a short period afterwards.57 Possession may be actual if the deceased’s body is in the home of the person with the duty of disposal, or constructive where the body is elsewhere (for example, in another relative’s home, a hospital mortuary or funeral home).58 More importantly, the right to possession also confers extensive decision-making powers about the method of disposal and what form the deceased’s funeral should take. However, Young J in Smith v Tamworth City County Council59 suggested that a person with the duty of disposal and concomitant right to possession is “expected to consult with other stakeholders, but is not legally bound to do so”.60

What about excluding others from the funeral ceremony? Several US cases suggest that this is possible, though much depends on the type of funeral and where it is being held. For example, in Rader v Davis61 spouses had divorced due to the husband’s aggressive behaviour and the wife (who had custody of the couple’s young son) had returned home to live with her father. When the boy died, the husband was prevented from attending the funeral by former father-in-law who owned the house where the private funeral was being held; there was nothing that the husband could do, even if the underlying motive was spite.62 Yet while a private funeral suggests personal invitations and potential exclusions, there is a world of difference between a private ceremony in a family home63 and one held in a public place such as a church or cemetery, which – by its very nature – is open to everyone who wants to attend. Excluding ‘unwanted’ attendees is not an option; the funeral is not taking place in a private space where the tort of trespass to land would trump any perceived entitlement to attend. Compared to Rader, the language in the recent Australian case of Manktelow v The Public Trustee64 is much more conciliatory and inclusive, the court suggesting that the person with the right to possession of the deceased’s remains “cannot use [it] … in such a way as to exclude friends and relatives from expressing their affection for the deceased in a reasonable and appropriate manner”.65 What this means is unclear, though one might assume that it envisages participation in the funeral, or at least the ability to be there. However, attending a funeral has been described as a “social rather than a legal right”,66 and while an executor or presumptive administrator cannot be liable for failing to notify other family members about the deceased’s funeral,67 the position may be different where that person is deliberately withholding information.68 The court may prevent the funeral from going ahead in these circumstances.69

Modern funeral practices may raise further legal issues around funeral participation. In today’s technology-obsessed world, being physically present at a funeral is not the only option, with an increasing number of funeral homes and crematoria offering live webcasts of the ceremony, so that absent relatives and friends can pay their last respects. While an ‘internet funeral’ facilitates virtual attendance by family and friends of the deceased living in different countries,70 similar questions could arise as to whether the person entitled to possession of the deceased’s remains could effectively exclude certain individuals from the webcast – given that the ceremony is broadcast via a secure web link which is password protected, and would have to be disclosed to all virtual attendees.

Possessory rights to the remains terminate when lawful disposal of the corpse has taken place.71 Where the deceased is buried,72 it seems logical that the executor or presumptive administrator’s entitlement ceases on interment. However, this is subject to two caveats, the first of which is that the deceased must have been “properly buried”73 so that the right to possession persists as a cause of action where others have taken the body unlawfully and buried it elsewhere.74 The second is that the right to possession may extend beyond burial, thus preventing an aggrieved relative from disinterring the remains immediately afterwards and reburying them elsewhere – something that has been suggested in a number of Canadian cases.75 Under English law, however, disinterment in either of these scenarios (both of which are unlikely) would be dependent on legal authorisation.76

Several cases have suggested that an interred corpse becomes part of the land, so that any unlawful interference is actionable in trespass, but only at the instance of the landowner (or holder of the right of burial).77 How and when this assimilation occurs is open to question. If, as these cases seem to suggest, a dead body becomes part of the realty as soon as it is buried, the landowner acquires immediate rights over the body according to the general principle that chattels affixed or annexed to the land become the property of the owner of the soil.78 The difficulty, however, with this approach is explaining how the annexation principle can apply to a corpse when, in legal terms, it does not constitute property before burial.79 If the body is placed in a coffin or casket, the annexation argument becomes stronger because the corpse is inside a container which is an item of property and capable of annexation – thereby circumventing the non-property status of its contents. Alternatively, it could be argued that a dead body does not merge with the land until it ceases to exist in any recognisable form – in other words, when it is fully decomposed and becomes “indistinguishable from the soil”.80 This avoids the annexation problem but raises another key issue. Where the corpse is interred in a coffin or casket (as is usually the case), the body would not form part of the realty until the container also disintegrated into the earth, effectively creating a legal vacuum (in private law terms) between the end of the personal representative’s right to possession and the vesting of legal rights in the landowner following a suitable period of decomposition. An action for trespass would not be available if someone disturbed the land to remove the corpse in the interim, though criminal law sanctions for unauthor ised exhumation would still apply.81

3.    Pre and post-cremation possessory rights

As with burial, the executor or presumptive administrator is entitled to possess ion of the deceased’s body for cremation purposes and has ancillary decision-making powers over any funeral ceremony.82 When applying for cremation in England and Wales, this common law proposition is statutorily buttressed by regulation 15 of the Cremation (England and Wales) Regulations 2008,83 which requires the application to be made by the deceased’s executor or a “near relative” aged 16 or over84 unless a satisfactory explanation is given for it being made by some other person.85 A “near relative” is defined as the surviving spouse or civil partner of the deceased, a parent or child of the deceased, “or any other relative usually residing with the deceased person”.86 Although broadly similar to the presumptive administrator rankings, this final caveat suggests a wider categorisation of familial relationships and could include unmarried cohabitants who do not currently qualify under English intestacy laws.87 Where the cremation application is made by another person, the standard forms inquire whether the executor or near relative has been informed and expressed any objections.88 This (aligned with the common law right to possession of the deceased’s remains) suggests that the executor or presumptive administrator could prevent cremation from taking place where the application was made by someone else.

Unlike burial, where disposal is complete when the deceased’s body is interred and the right to possession terminates, the position is less straightforward with cremation. Ashes have a lasting and tangible presence; what happens to them raises issues around “secondary decision making”,89 and may be a further source of contention within families. Initial rights to possession of the ashes are determined by prevailing cremation laws – for example, in England and Wales, the crematorium must return the ashes to the applicant or person nominated by them to collect the ashes.90 However, it appears that this entitlement is subordinate to the common law right of the deceased’s executor or presumptive administrator, who can insist on having the ashes returned to them and despite not having applied for cremation. This is exactly what happened in Robinson v Pinegrove Memorial Park91 where a son had arranged for his father’s remains to be cremated (the widow and the other children all supported this), but subsequently contracted with the crematorium to place half the ashes in a rose garden at the cemetery; the other half was to be given to the widow for scattering in a park in Birmingham close to where the family had lived before moving to Australia. However, the widow wanted to scatter all of the ashes in England, according to her dead husband’s wishes. The deceased’s executor intervened on the widow’s behalf, claiming that the ashes should be released to him (at which point the executor would pass them to the widow). Waddell CJ held that the executor’s right to possession extended to the ultimate disposal of the remains, and where the deceased had been cremated this included the fate of the ashes – especially where the aim was to carry out the deceased’s wishes.92 The son’s contractual arrangement with the crematorium was subject to the executor’s right to decide how the deceased’s ashes should be disposed of.93

The fact that the executor is entitled to possession after the ashes have been released by the crematorium is hardly surprising, and was confirmed in Leeburn v Derndorfer 94 in which Byrne J suggested that the executor holds the ashes on trust “for the purpose of disposing or dealing with them in [an appropriate] way”.95 Where there is no executor, the decision in Doherty v Doherty 96 establishes that the presumptive administrator is at liberty to deal with the ashes after cremation – once again, holding them on trust to dispose of appropriately.97 Both cases define ‘appropriate’ as “hav[ing] regard to the claims of relatives or others with an interest”,98 which denotes some sort of collective input into the fate of the deceased’s ashes. The decision in Doherty is particularly strong on this point, suggesting that where the ashes are to be disposed of, the presumptive administrator (or executor) must stipulate when this is going to take place – especially where other relatives of the deceased are keen for the ashes to have a permanent resting place, thus bringing about some sense of closure.99

In most situations, final disposal takes place when ashes are either interred or scattered.100 For obvious reasons, possessory rights terminate immediately where ashes have been dispersed, but what rights (if any) persist where ashes have been placed in the ground and remain physically intact inside an urn or container? Again, by analogy to corpse burial, we might assume that the common law right to possession terminates at this point. However, the same two caveats probably apply here:101 the ashes must be ‘properly’ interred, and the executor or presumptive administrator’s right to possession continues for a short period of time afterwards to prevent any unauthorised removal.102 Finally, if buried ashes are to be treated in the same way as buried corpses, the ashes might become part of the land from the moment of interment, giving the landowner (or holder of the right of burial) an action in trespass if any attempt is made to disturb them.103

Unlike corpses however, ashes can also be retained in specie and kept, unburied, in an urn or container.104 This generates further legal issues, with the court in Doherty v Doherty105 suggesting that the personal representative has a “continuing” obligation to deal with the ashes appropriately for as long as they are retained and not disposed of “in some final way”. Of course, it is not uncommon for an executor or presumptive administrator to relinquish the ashes to other members of the deceased’s family after cremation, at which stage the former’s right to possession presumably comes to an end – especially where the ashes are to be retained permanently by someone else. More importantly perhaps, it seems that retained ashes lend themselves to some sort of property analysis – despite their “notional ‘identity’ as ‘the deceased’”.106 As Byrne J explained in Leeburn v Derndorfer107:

[A]shes may be dealt with in a way that would not be possible with respect to a dead body.… Moreover, so long as they are not dispersed or otherwise lose their physical character as ashes, they may be owned and possessed.… Ashes which have in this way been preserved in specie are the subject of ordinary rights of property, subject to one possible qualification. In this way, ownership in the ashes may pass by sale or gift or otherwise. The only qualification … arises from the fact that ashes are, after all, the remains of a human being and for that reason they should be treated with appropriate respect and reverence.108

Again, the obvious question is how a corpse as an item of non-property becomes the opposite when converted into ashes. Byrne J suggested that ashes should have the same legal status as the preserved body in Doodeward v Spence,109 taking the view that the “application of fire to the cremated [sic] body is to be seen as the application of work or skill which has transformed it from flesh and blood to ashes, from corruptible material to material which is less so”.110 While attractive as a means of circumventing the ‘no property’ rule, this line of reasoning is unconvincing and has not been adopted elsewhere;111 even if we accept that cremation constitutes a skilled process within the Doodeward remit, the end product is a substance that does not have a function beyond stored ashes.112 The position would, of course, be differ ent where the person in lawful possession of the ashes has them converted into a permanent memorial to the deceased with some sort of independent use value (for example, an item of jewellery or other keepsake113). Any such item would have property status.

II.   Liability for funeral expenses

This is an important issue, given the sums of money involved.114 While the deceased’s personal representative has legal responsibility for the funeral arrangements, these must made within a short period of time – and that person’s identity may not be clear from the outset. This can result in the deceased’s family organising the funeral without questioning who has decision-making authority,115 or legal responsibility for disbursing costs. Where the deceased contracted for particular services under a pre-paid funeral plan, certain charges are automatically covered.116 Alternatively, close relatives may agree to pay the costs, with social fund payments providing financial assistance if the eligibility criteria are satisfied.117 However, this is usually an interim measure, and individuals who incur funeral expenses118 often expect to be reimbursed for the full amount – something that can be a source of contention, long after the deceased’s remains have been disposed of. A number of rules have evolved.119

1.    Expenses recoverable from the deceased’s estate

A personal representative or other individual who orders the funeral (and any associated services and goods120) is liable in contract to the undertaker or relevant service provider.121 However, contractual liability is tempered by the fact that reasonable funeral costs can be recovered from the deceased’s estate.122 The personal representative has an indemnity for expenses as the person with primary responsibility for arranging the funeral;123 where the arrangements were made by someone else, he/she can recover expenses from the deceased’s estate via the personal representative.124 This might be someone within the wider family circle, or (reverting to the legal hierarchy noted earlier125) a householder, hospital trust or local authority that incurred costs in discharging the duty to dispose of the deceased’s remains.126 Any social fund payments advanced towards funeral expenses are also recoverable.127

Of course, this assumes that there are adequate funds available in the estate – or that the deceased actually left an estate to administer.128 The latter scenario is less common in adult deaths, but often occurs where the deceased was an infant or minor. Here, the child’s parents are legally responsible for funeral costs.129

2.    ‘Reasonable’ expenses only

Recovery from the deceased’s estate is limited to ‘reasonable’ funeral expenses;130 the personal representative (or anyone else who orders the funeral) is liable for any excess costs. Presumably, the underlying intent is to prevent unwarranted and extravagant expenses from depleting the deceased’s estate to the detriment of beneficiaries.131

There are no set financial limits for what constitutes reasonable expenditure, nor is it restricted to a percentage value of the net estate.132 However, certain qualifications apply. The deceased’s ‘position in life’ is a material factor,133 as is his/her religious and cultural beliefs (if, for example, these mandate more elaborate funeral requirements and mourning rituals).134 Where the deceased has stipulated certain funeral arrangements in a will or pre-paid funeral plan, these can also act as benchmark for recovering costs.135 Concerns around the potential solvency of the deceased’s estate will also dictate what is reasonable, to prevent assets being diminished at the expense of the deceased’s creditors.136 Assuming the personal representative knows the estate is insolvent or has reason to believe it might be,137 any funeral costs are limited to “the minimum expenses that will accord a dignified interment [or cremation]”.138

Expenditure on headstones marking the deceased’s grave is one of the most contentious areas. This falls within the rubric of funeral expenses,139 subject to the reasonableness test;140 but when the estate is (or is likely to be) insolvent, this particular cost will be closely scrutinised so that “only the simplest and most modest tombstones can be charged against the creditors”.141

III.  Disposal of the dead and civil law causes of action

Mistreatment of the dead attracts criminal law offences.142 From a civil law perspective, however, much debate has centred on whether (and to what extent) third parties with temporary custody of the deceased’s corpse or ashes, at various stages between death and final disposal, are liable for mishandling the remains. For example, what if a funeral director embalms the deceased’s body contrary to the bereaved family’s wishes,143 or places the wrong body in the wrong casket,144 or allows the deceased’s body to be cremated before the family have had a chance to view it;145 what if a crematorium returns the wrong set of ashes, or misplaces them;146 what if the hospital where the deceased died carries out an unauthorised autopsy?147 While we might instinctively assume that these scenarios generate a cause of action, invoking established rules of contract, torts and property law is complicated by two things. First, while the alleged wrong is tangible enough, the real issue here is not physical ‘damage’ to the corpse, but the mental anguish that such actions inflict on surviving relatives. Second, there is the question of who can recover in a civil law action, given that the deceased’s immediate family will have suffered the relevant harm – regardless of who has the legal duty of disposal and right to possession of the deceased’s remains.

Where the third party has control of the deceased’s remains by virtue of a contractual arrangement, basic liability is governed accordingly. The best example is the contract with the funeral director; failure to provide specific services will permit recovery based on the express or implied terms of the contract – for example, where an expensive coffin selected by the deceased’s family is surreptitiously replaced with a cheaper one by the funeral director.148 However, inflicting some sort of ‘injury’ to the deceased’s remains, or conducting the funeral in an inappropriate or irreverent manner, opens up the possibility of damages for non-pecuniary loss such as distress and mental anguish caused by the breach of contract.149 For example, in the Canadian case of Kressin v Memorial Gardens

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