Exhumation … needs strict controls … in the interests of public welfare, the wishes of the deceased and the feelings of the families of those involved.1
Exhumation involves opening up a grave (or occasionally a vault) and removing human remains already buried there.2 Also known as ‘disinterment’, exhumation is controversial – even if the intent is usually to rebury displaced remains elsewhere.3 Most societies and cultures that embrace burial as a means of bodily disposal exhibit an entrenched reluctance to disturb the dead’s earthly repose for two reasons. The first is public health concerns around the potential transmission of disease from decaying corpses.4 Secondly, and more fundamentally, exhumation offends the basic moral premise of allowing the dead to ‘rest in peace’ and is generally regarded as a forbidden or sacrilegious act.5 As a result, exhumation in England and Wales is subject to strict legal controls.6
This chapter analyses the complex laws, policy debates and conflicting values around disinterment. In many ways, the issues which arise here mimic those generated by disposal of the dead. For example, parts of the applicable legal framework are lacking in clarity, while disputes within families can occur where surviving relatives are divided over whether to exhume the deceased’s remains. Religious and cultural imperatives can also play a significant role in disinterment decisions, just as human rights influences are increasingly coming to the fore. However, exhumation also raises its own distinct issues, beyond the basic question of what constitutes sufficient reason for disturbing the dead. There are two different legal processes in England and Wales with potentially diverse outcomes, depending on whether the original interment was in consecrated or unconsecrated ground. The level of consensus required where some members of the deceased’s family oppose exhumation is also unclear, while disputes between surviving relatives and the relevant burial authorities create numerous opportunities for conflict.
Requests for exhumation fall into two broad categories: public interest, and personal reasons. Examples of the former include investigation of potential criminal offences where new evidence has come to light about an individual’s death7 or bodies have been discovered in suspicious circumstances,8 as well as mass exhumations following wartime atrocities.9 Exhumation can also be ordered, in the interests of justice, to ensure that an earlier jury verdict in a murder trial was correct in light of advances in DNA profiling.10 Moving beyond the realm of the criminal law, public interest concerns also come to the fore where planned development projects (e.g. new infrastructure or buildings) require multiple graves in older and frequently disused burial grounds to be cleared, as the demands of the living take precedence over the longer-term dead.11 Other isolated examples include disinterment for sanitary reasons,12 for archaeological investigation,13 a desire to honour (or even protect) the remains of important historical or public figures,14 and exhumation to facilitate important medical research.15
Disturbing the dead for any of these reasons is a relatively infrequent occurrence, though the public interest dimension can tip the scales in favour of allowing exhumation.16 In contrast, exhumations driven by personal reasons – the low-profile, single grave disinterments involving comparatively recent burials and occurring within the private, familial sphere – are much more commonly sought. The intent may be to move the deceased from a single grave into a family plot or to repatriate a corpse or ashes when the deceased’s loved ones are moving elsewhere (in both instances, ensuring family unity after death),17 or to move the deceased’s remains to a place which has more significance for their family (for example, where another close relative has subsequently died and been buried elsewhere).18 Spiritual beliefs may also be a factor, with requests to move the deceased from unconsecrated ground to a burial place affiliated with a particular faith, or vice versa.19 Finally, disinterments may be intended to confirm the deceased’s identity and even the fact of death;20 to retrieve important papers accidentally placed in the deceased’s coffin;21 and because the deceased was initially buried in the wrong burial plot, often because of a mistake by church officials or cemetery staff.22
Irrespective of motive, exhumations for personal reasons are requested with greater frequency and raise more complex issues; from a policy perspective, the absence of any discernible public benefit makes disturbing the dead more difficult to justify in these cases, which form the focal point of the following discussion.
Exhuming the dead requires legal authorisation,23 secured by one of three methods. The first is the relatively narrow category of cases where a coroner orders exhumation, either to carry out a post-mortem or where a body needs to be examined as part of any criminal proceedings.24 However, the vast majority of disinterment applications fall into the other two categories: a Ministry of Justice licence or an ecclesiastical faculty, depending on where the remains were originally interred.
Where human remains were originally buried in ground consecrated by the Church of England, any subsequent displacement requires the grant of a faculty in accordance with ecclesiastical law.25 Thus exhumation of a corpse or ashes26 from a Church of England churchyard or the consecrated part of a municipal cemetery is dependent on permission from the Chancellor of the consistory court for the diocese in which the grave is located.27 Removal and reinterment of the remains in exactly the same place (for example, to deepen the existing grave to allow further burials) requires a faculty.28 More often, the underlying purpose will be reinterment in a different plot in the same or other consecrated ground, or moving the remains to unconsecrated ground.29 Other possibilities include exhuming a body to cremate it, or previously interred ashes to rebury, scatter or keep them. However, where the remains are going to be exhumed, to and for what underlying purpose will determine whether or not a faculty will be granted.30
The formal process requires completion of a special Faculty Petition Form, detailing the reasons for exhumation, where the remains are currently located and where they are being moved to, as well as the petitioner’s relation ship to the deceased.31 However, unlike the Ministry of Justice procedure, there is no standard application form. Different diocesan versions apply depending on where the remains are interred; and even if the questions posed and consents required (for example, from the holder of the exclusive right of burial, and close members of the deceased’s family) are broadly the same, there is no set definition of who qualifies as ‘petitioner’. While a surviving spouse, followed by the deceased’s closest living relative or next-of-kin would be well-placed to apply for a faculty, the position may be less clear for surviving unmarried cohabitants who fall outside traditional kinship categories (at least for estate administration purposes).32 Slight regional variations are a possibility here.
Where the grant of a faculty is declined, there is a subsequent right of appeal to either the Chancery Court of York in the Northern Province of England or the Court of Arches in the Southern Province, depending on the geographical location of the first instance consistory court.33 The existence of twin appellate courts for different regions raises questions around the consistency of the decision-making process, and whether consistory courts should be influenced by decisions of the appellate court in another province. However, both are guided by the same fundamental principle (namely, the permanence of Christian burial)34 and, according to Re St Nicholas’s, Sevenoaks35 should be seen as two divisions of a single court for precedent purposes.
2 The secular route: Application for a Section 25 Licence
Faculties only apply where ground has been consecrated by the Church of England. The resultant lacuna where human remains were not protected under ecclesiastical law was exposed in the nineteenth century, as increasing secularisation coincided with public concerns (fuelled by the growth in body snatching) around the safe and permanent interment of the dead.36 As a means of protecting burials outside the remit of the established church,37 s 25 of the Burial Act 1857 introduced a secular authority to exhume human remains and was originally enacted in the following terms:
Except in the cases where a body is removed from one consecrated place of burial to another by faculty granted by the ordinary for that purpose, it shall not be lawful to remove any body, or the remains of any body, which may have been interred in any place of burial, without licence under the hand of one of Her Majesty’s Principal Secretaries of State, and with such precautions as such Secretary of State may prescribe as the condition of such licence; and any person who shall remove any such body or remains, contrary to this enactment, or who shall neglect to observe the precautions prescribed as the condition of the licence for removal [commits an offence].38
As a result of this provision, “remains in unconsecrated ground became protected just as remains in consecrated ground had been”.39
Section 25 remains in force today, and while its wording has recently been altered40 the basic remit is still the same. The provision incorporates both bodies and ashes,41 and governs exhumations that fall outside the faculty jurisdiction as well as those that are not governed by other specific statutory provisions.42 It applies to the removal of remains from unconsecrated ground, such as municipal cemeteries and burials on privately or publicly owned land, as well as from other denominational burial grounds – essentially affiliated churchyards and specific burial places for faiths beyond the Church of England.43 Exhumation may be followed by reburial in other unconsecrated or consecrated ground,44 or in the exact same grave;45 alternatively, it may be to cremate a body, or to scatter or keep ashes.46 However, the initial disinterment requires a s 25 licence, regardless of the subsequent fate of the remains.
The formal process involves submitting a detailed application form to the Ministry of Justice,47 under the remit of the Secretary of State for Justice.48 Permission is usually sought by one of the deceased’s surviving relatives; however, anyone can apply, as long as they explain why they are making the request.49 Ensuring that the relevant consents are in place is a vital part of the process. The initial emphasis is on the deceased’s next-of-kin as “identified and prioritised by standard probate principles”,50 so that the basic ranking of spouse or civil partner, children, parents, siblings, etc, of the deceased reasserts itself on exhumation.51 Although the consents of all of the next-of-kin are usually required,52 a s 25 licence can be issued where the application is made by the highest ranking relative or all of those ranked equally highest, despite objections from someone of lesser kinship; and where a spouse or civil partner applies, that is usually the end of the inquiry.53 Any known objections must be detailed on the application form, yet the Ministry of Justice will not become embroiled in family disputes and can defer the grant of a licence until these have been resolved.54 Looking beyond the next-of-kin, the applicant must also secure the consent of the owner of any exclusive rights of burial on the grave as well as the relevant burial authority (or landowner, in the case of burial on private land). A s 25 licence only grants permission to exhume the deceased’s remains; it “does not authorise the licence holder to go onto the land on which the licence holder has no interest”.55 Since this would constitute a trespass, a s 25 licence is very unlikely where the holder of the exclusive right of burial or the burial authority/landowner objects.
There is no statutory right of appeal against the grant or refusal of a s 25 licence; judicial review is the only option, if the Secretary of State acted unlawfully, unreasonably or irrationally in reaching the decision.56 Yet, the broad statutory power conferred by s 25 makes this difficult to establish, as R (on the application of Rudewicz) v Ministry of Justice 57 illustrates. Permission to exhume the body of a Polish priest from the churchyard where it had been buried 50 years earlier was granted by the Secretary of State, following a request by the priest’s religious order and endorsed by senior members of the Catholic Church. The order, in possession of what was now defunct property and bound by the terms of a charitable endowment, was selling the property and contractually obliged to remove the deceased’s remains under the conditions of sale; Father Jarzebowski would be reinterred with other members of the same religious order in a cemetery two miles away, and where people could still visit his grave – an important factor, given his saintlike status amongst Polish Catholics both here and abroad. However, the disinterment was strongly opposed by members of the Polish community, including the claimant who challenged the Secretary of State’s decision in her capacity as a distant but closest living relative of the dead priest.
Looking at the exhumation controls imposed by s 25, the High Court accepted that there should usually be “some proper reason”58 for disinterment and that a Secretary of State who granted permission “for a frivolous reason or for no reason at all would be acting unreasonably and irrationally”.59 However, the decision-making process could not be impugned in the present case; the Secretary of State had been entitled to decide that relocating the deceased’s remains (a specific course of action favoured by the Catholic Church) to a burial site where he would be reunited with his colleagues and where the public would have unrestricted access to his grave favoured the grant of a s 25 licence, regardless of opposition from the claimant and others.60
Although the faculty and licensing jurisdictions have clearly defined boundaries, the original wording of s 25 of the 1857 Act meant that both types of permission were sometimes required. A literal interpretation of the opening proviso – “[e]xcept in the cases where a body is removed from one consecrated place of burial to another by faculty granted … for that purpose” – resulted in the disinterment of remains from a Church of England grave or plot and their subsequent reburial in the same place, or in unconsecrated ground, needing both a faculty and a licence.61 From 1 January 2015,62 however, s 25 reads as follows:
(1) It is an offence for a body or any human remains which have been interred in a place of burial to be removed unless one of the conditions listed in subsection (2) is complied with.
(2) The conditions referred to in subsection (1) are:
(a) the body or remains is or are removed in accordance with a faculty granted by the court;63
(c) unless the body or remains is or are interred in land which is subject to the jurisdiction of the court…, the body or remains is or are removed under a licence from the Secretary of State and in accordance with any conditions attached to the licence.
The restatement retains the original substance of the provision, while simplifying exhumation procedures in the two consecrated land scenarios outlined here. Both are now dependent solely on a faculty, thus removing another layer of bureaucracy and legal complexity from the disinterment process – given that faculties and s 25 licences have distinct formal requirements. Dual applications involved two sets of paperwork and supporting evidence, with different time periods for reaching a decision.64 The two authorisations were also independent (one could not be made conditional on the grant of the other), and the person seeking exhumation needed both for it to be legal.65 Even more problematic was the prospect of the respective decision-makers reaching different verdicts on the same factual scenario; and while the abolition of dual permission requirements prevents this, ecclesiastical authorities and the Ministry of Justice can still adjudicate factually similar requests for exhumation in dissimilar ways.
Ecclesiastical law presumes that the initial act of interment is intended to be permanent; and while consistory courts (as first instance decision-makers) can sanction the removal of human remains from a consecrated grave, faculties are not granted as a matter of course. As Cameron QC, Dean of the Arches explained in Re Blagdon Cemetery:66
Lawful permission can be given for exhumation from consecrated ground.… However, that permission is not, and never has been, given on demand by the consistory court. The disturbance of remains which have been placed at rest in consecrated land has only been allowed as an exception to the general presumption of permanence arising from the initial act of interment.67
The onus is on the petitioner to put forward “special circumstances” which, on the balance of probabilities, “justify the making of an exception from the norm that [interment in consecrated ground] … is final”.68 However, the discretion to exhume will be exercised sparingly. While disturbing the dead may sometimes be necessary or expedient, consistory courts do not regard human remains as “portable [items], to be taken from place to place”,69 even if the potential displacement distance is a comparatively short one.70 And while the physical difference between interred ashes and an interred corpse might make exhuming the former a simpler task,71 this does not make the grant of a faculty more likely; both types of request are treated in the same way.72
In rebutting the basic presumption against disinterment, ecclesiastical courts regard certain factors as persuasive.73 An error or oversight surrounding the original burial will usually suffice – for example, failure to appreciate the spiritual significance of interment in consecrated ground (especially where the deceased adhered to different faith values)74 or, more likely, mistaken burial in a grave space already reserved for someone else.75 In the latter scenario76 where two sets of grieving families are the unfortunate victims of circumstance, exhumation will be desperately sought by one side and fiercely opposed by the other.77 Alternatively, the physical or (more likely) mental wellbeing of the living can justify exhumation. While advancing years or medical conditions that make it difficult for relatives to visit the grave of a loved one may not suffice,78 severe psychiatric or psychological problems related to the location of the deceased’s remains can constitute exceptional circumstances.79 For example, in Re St Mary the Virgin, Stansted80 the court allowed exhumation of the deceased’s remains from a churchyard close to where he had been killed by a dangerous driver. The deceased’s mother and brother had been unable to visit the grave because neither could bear to pass the place where they had last seen the deceased alive; medical evidence indicated profound emotional difficulties, which would improve if the remains were moved elsewhere.81 Other potential grounds for allowing exhumation include the fact that the original interment was not in accordance with the deceased’s express wishes;82 to ensure that the coffin contains the proper remains where this fact is later disputed;83 and, in more extreme situations, to ensure that the deceased is not buried with a family member who sexually abused them in life.84
Turning to more generic factors, consensus amongst the deceased’s closest relatives that the remains should be disinterred can also be persuasive,85 assuming the existence of a valid reason for exhumation.86 However, material objections are not confined to the deceased’s next-of-kin. Consistory courts will be sensitive to the views of those whose relatives are buried in adjacent graves,87 though the amount of ‘local support’ for a petition (for example, that of the church council or congregation) will normally be irrelevant.88 Another influential factor is lapse of time; a request for exhumation within weeks or months of the original burial is more likely to succeed than one where remains have been undisturbed for years89 – though the longer-term dead may be displaced if there is a public interest in moving remains buried over a century ago.90 Late applications place a much stronger onus on the petitioner, who must present a credible explanation for the delay alongside supporting reasons.91 Another important consideration in faculty petitions is where the remains will be placed after exhumation. Reinterment in the same grave (usually at a greater depth to facilitate further burials) does not tend to be problematic,92 and consistory courts may be more inclined to grant a faculty where exceptional circumstances are established and the deceased is to be reinterred in consecrated ground.93 However, other displacement locations and outcomes are less clear-cut. For example, while there is no outright prohibition on reinterment in unconsecrated ground, the grant of a faculty may not be as forthcoming,94 and questions have been raised about disinterment to allow the deceased’s remains to be cremated.95 Case law also suggests that a faculty will not be granted where the petitioner’s intent is to scatter ashes currently interred in consecrated land (as opposed to reburying them elsewhere),96 or to keep ashes at home indefinitely.97
Other scenarios militate against the grant of a faculty, though a factor that might not suffice on its own can rebut the presumption of permanent burial when taken in conjunction with others.98 As a general rule, a mere change of mind by the deceased’s family after the initial interment will not constitute exceptional circumstances,99 nor will the fact that the family has moved to a new area and wants to relocate the deceased’s remains as well.100 Living in a more mobile society does not mean that families can expect to move their dead as part of every geographical transition, unless there are other mitigating factors.101 These might include medical reasons,102 or the absence of any link between the deceased and their place of burial – for example, where close family had not established a permanent home at the time of the deceased’s death,103 and despite a lengthy time since the original interment.104 Reuniting family members in the same grave can sometimes rebut the presumption of permanent burial,105 though other exceptional factors can be required.106 The fact that the living find separate resting places distressful is irrelevant (especially where the deceased’s family originally opted for this arrangement107), as is a testamentary request that a dead relative’s remains are exhumed and placed with those of the more recently deceased.108 Family members wanting to relocate a loved one’s remains to a newly opened cemetery,109 or one which would have been their original choice had space been available, will not automatically justify exhumation – even if, in the latter scenario, the proposed reinterment site is where the deceased would also have preferred to have been laid to rest.110
Concerns around the upkeep and safety of a particular churchyard or consecrated area of a cemetery will probably fail, even if the physical state makes it difficult for older petitioners (or those with limited mobility) to tend to a grave111 or a family member has been mugged on a previous visit.112 Likewise, a faculty will not be granted because a petitioner objects to the enforcement of regulations about what can be placed on a family grave.113 A good illustration is Re St Andrew’s Churchyard, Alwalton114 where a wife wanted to exhume her husband’s ashes because a vase and flowers had been removed from his grave by church authorities, who had implemented rules on floral tributes and other memorials. Refusing the faculty on this and other grounds,115 the deputy Chancellor stressed that consistory courts should be “very slow” to grant petitions that would undermine the enforcement of churchyard regulations and set a potentially dangerous precedent.116 Other factors against the grant of a faculty include public health concerns, the fact that exhumation would be contrary to the deceased’s wishes, “reasonable opposition” from members of the deceased’s family or the fact that the petition itself is based on “improper motives”.117 Petitions designed to remove the dead from family plots based on “family differences” and ongoing grievances will “usually fail”,118 as in Re Mangotsfield Cemetery119 where an ex-husband wanted to have his ex-wife’s ashes exhumed from the plot where they had been placed with the couple’s dead son, despite the husband only discovering this seven years later during one of his infrequent visits to the grave.120 Finally, case law also suggests that a faculty will be refused even though the petitioner has been mistakenly advised by a funeral director that the request would be likely to succeed,121 and where exhumation is requested for historical or scientific reasons,122 unless a public benefit is established.123
The jurisdiction to grant a faculty is discretionary. While theoretically unfettered, the high thresholds imposed by ecclesiastical courts and the aura of permanence surrounding burial in consecrated ground make faculties difficult to obtain. Each petition is assessed on its own merits, and the decision-making process can be a lengthy one as all the evidence is weighed up and the court makes a formal determination.124 The result is a substantial body of case law, with individual outcomes that are highly fact-specific; and while some basic trends can be identified, broadly analogous scenarios can sometimes seem rife with inconsistencies as the discussion has highlighted.
Turning to s 25 of the 1857 Act, the jurisdiction to exhume is also a discretionary one though the assessment of individual applications differs significantly. Both the original and amended versions of this provision set out a basic regulatory framework; unlike the faculty jurisdiction however, the statutory requirement of a licence for non-secular exhumations does not subscribe to the core principle of leaving human remains undisturbed. As McCombe J explained in R (on the application of Rudewicz) v Ministry of Justice:
[Section 25] does not provide for any assumption or presumption that should be applied in the exercise of the statutory discretion. It ensures that bodies are not to be removed from their resting place without the sanction of a competent authority.… It does not, in the hands of a secular authority … require the rebuttal of some presumption against the removal of remains.125
In the same case, Hallet LJ suggested that there should be “some proper reason”126 for disinterment, and while seemingly trivial or capricious requests might be rejected, the fact remains that a s 25 licence is entirely at the discretion of the Secretary of State. The provision imposes no limits on the circumstances in which human remains can be disturbed, leaving decisions to be made on a case-by-case basis (with the help of internal guidelines) and without having to devise exceptions to a basic presumption against disinterment. The upshot is what Gallagher describes as a “marked divergence”127 between the factors that secular authorities and ecclesiastical courts regard as influential. For example, lapse of time since the original interment may not deter the grant of a s 25 licence,128 and permission has also been more forthcoming where exhumation is requested for archaeological or scientific reasons.129 The actual decision-making process is a secular one, although religious views will be taken into account where the proposed disinterment is from a burial place designated to specific denominations or faith groups.130 When considering private, family applications the underlying reasons may not even be explored;131 as long as the necessary consents are in place,132 the application is for “personal, family reasons” and there are “no known legitimate objections”, the Secretary of State will normally grant permission for disinterment.133 So while the grant of a faculty is an evaluative judgment, the approval of a s 25 application is more procedural. The decision-making process is also much quicker, as applications are typically determined within 20 days.134
With the exception of mistakenly interred remains where s 25 licences have been refused in the past,135 it is much easier to obtain a s 25 licence than a faculty.136 Aside from the different procedural requirements and decision-making criteria,137 those seeking to exhume the remains of a loved one can be subjected to very different outcomes on what are broadly similar sets of facts.138 The issue was raised in Re Christ Church, Alsager139 where the petitioner listed the number of disinterments from a nearby local authority crematorium as part of his appeal against the refusal of a faculty to exhume his father’s ashes from a Church of England churchyard. In rejecting this evidence, the Chancery Court of York stressed that the churchyard was consecrated ground and therefore subject to different legal constraints; ecclesiastical law could not be influenced by equivalent practices in municipal cemeteries. Yet one of the reasons behind the petitioner’s appeal was clearly a perception of unequal treatment, given the variance in practice between two different burial locations less than 6 miles from each other.140 And, as Lovatt points out, an even more extreme example could occur “within a space of a few feet” in municipal cemeteries, “depending on the territorial boundaries” of the consecrated area.141
Despite the court’s assurances that the petitioner had not been subjected to “unfair discrimination” in Re Christ Church, Alsager142 the fact remains that requests to exhume the dead are treated very differently in English law, depending on whether original interment was in consecrated or unconsecrated ground. In many ways this is unavoidable, given the sharp contrast in the secular and ecclesiastical rationales for exhumation – though the distinction is not always widely known or understood by bereaved families when choosing a particular gravesite.143 Making informed choices is essential,144 and those who opt for consecrated ground should be cautioned against “bury[ing] today thinking that they may exhume tomorrow”145 if circumstances change. However, there may be an argument for bringing the secular and ecclesiastical jurisdictions to exhume into line, perhaps by assimilating the two within a single decision-making body and introducing some measure of “certainty to an emotive area of law”.146 Ecclesiastical authorities would almost certainly oppose this, given the basic theological values underpinning burial in consecrated ground. Yet a unified decision-making body could still be cognisant of these values and the underlying presumption of permanent burial, while simultaneously recalibrating the secular jurisdiction along similar lines. Introducing more stringent requirements for exhumation from unconsecrated ground accords with the basic premise of allowing the dead rest in peace. As George Ch stressed in Re West Norwood Cemetery,147 “[m]ost people, and not merely Christian people, feel a sense of respect for the dead and a reluctance to interfere with their remains”.
Exhumation is an emotionally sensitive issue for the deceased’s family, especial ly if it involves moving a buried corpse (as opposed to ashes, though this can also be upsetting). While plans to disinter will often be consensual, they can also generate bitter disputes between the living. For example, parents or siblings might object to the deceased’s remains being moved elsewhere by someone further up the notional kinship hierarchy (usually a surviving spouse or civil partner), with discordant religious and cultural sensitivities providing a further source of conflict. Latent family tensions can also be reignited, despite the passage of time since the original interment.148
Both the secular and faculty routes proceed on the basis that the necessary consents are in place, at least from the deceased’s immediate family. Individual objections should be documented, though Ministry of Justice guidelines emphasise that it will not adjudicate contentious applications,149 while ecclesiastical courts regard family feuds as a factor against the grant of a faculty.150 Permission to exhume may be more forthcoming where close relatives all agree to relocate the deceased’s remains (though this, in itself, is no guarantee – especially when seeking a faculty). However, the secular route seems to adopt a normative kinship ranking, which prioritises the deceased’s surviving spouse or civil partner.151 As a result, their views on exhumation will be a major determinant; a s 25 licence is unlikely to be granted if the surviving spouse or partner objects, regardless of the views of other close family members.
Arguments based on the European Convention of Human Rights are increasingly employed in funeral disputes, either in support of family members who favour certain arrangements or as a case for upholding the deceased’s own bodily disposal preferences.152