Resolving funeral disputes

4  Resolving Funeral Disputes

[I]n this area … difficulties sometimes arise that would test the wisdom of Solomon.1


Most people probably assume that their funeral will be arranged by close family members who, united in grief, will ensure that this takes place in a dignified and appropriate manner. However, consensus is not always possible as surviving relatives clash over a range of things: whether the deceased should be buried or cremated, adherence to religious or cultural values, the proposed burial location and what happens to the ashes following cremation to list but a few.2 While most occur within the private sphere, contests involving dead celebrities and high-profile public figures also illustrate death’s divisive and destructive powers. For example, in February 2007 the former Playboy model Anna Nicole Smith lay decaying in her coffin during a protracted legal battle between her estranged mother, former lover and infant daughter (represented by the child’s guardian ad litem),3 while disagreement over Nelson Mandela’s final resting place also engulfed his family in the months before the former South African president’s death in December 2013.4

While the death of a loved one often brings families together, its emotional impact “can also tear survivors apart”.5 Anger, hostility and resentment are basic functional responses to death,6 and ‘funeral disputes’ are a classic example of death fracturing family bonds. If consensus or compro mise cannot be reached, the law must intervene to ensure that disposal of the dead takes place.

I.    The underlying motives

Case law reveals a number of recurring themes, when surviving relatives disagree over the fate of their dead.7

1.    ‘Doing right’ by the deceased

Here, the emphasis is on doing what the deceased wanted.8 A good example is Burrows v HM Coroner for Preston,9 which involved the remains of a 15-year-old boy who committed suicide while detained in a young offenders’ institution. The boy’s mother (a recovering heroin addict who had little contact with her son) insisted on burial, despite acknowledging that this was contrary to his wishes; the boy’s uncle, with whom he had lived for eight years, wanted to fulfil the boy’s request to be cremated. 10

2.    Religious and cultural dimensions

Funeral rites are often shaped by religious and cultural beliefs,11 generating tensions within families. Disputes based on religious convictions typically take two forms, the first occurring where the proposed funeral arrangements are not in keeping with the deceased’s own beliefs. For example, the deceased in Hunter v Hunter12 was a staunch Protestant who had converted to Catholicism one month before his death, apparently to enable him to be buried beside his devoutly Catholic wife. The deceased’s son opposed this, given his father’s strong religious convictions and conflicting evidence surrounding the deceased’s mental state before he died.13 The second and more problematic scenario arises where certain relatives insist on imposing their own religious preferences, regardless of the deceased’s ambivalence or non-adherence. A good illustration is Saleh v Reichert14 in which a husband’s decision to honour his wife’s wishes by cremating her remains was challenged by the deceased’s father who wanted to inter his daughter’s body in accordance with the Muslim faith in which she had been raised.15

Cultural values can generate similar types of disputes. Again, problems arise where the deceased discarded cultural traditions in life, yet family members insist on specific funeral rites as a means of re-establishing those links on death – an issue that has arisen in numerous Australian cases involving members of the Aboriginal community. For example, in Meier v Bell16 one of the deceased’s siblings wanted to bury her brother in a cemetery alongside his dead parents and other family members according to Aboriginal burial beliefs, while his de facto partner (who also claimed some ‘distant’ Aboriginal blood) insisted on burying the deceased in another cemetery where it would be easier for her and her children to visit the grave. A similar scenario arose in Jones v Dodd,17 the deceased’s father wanting his son to be buried with other relatives in his geographical and spiritual homeland, while the deceased’s former partner claimed that he should be buried in a cemetery close to where she resided so that the couple’s children could visit their father’s grave. Custody of the deceased’s body was awarded to the partner in Meier, while the opposite conclusion was reached in Jones though the significance attached to cultural imperatives was very different in each.18

3.    Resuming old hostilities

Where families are already divided and prone to conflict, death can resurrect old grievances. For example, disputes between adult siblings following the loss of a parent are often childhood problems in contemporary guise, something which the judge acknowledged in Leeburn v Derndorfer19 where a brother and his two sisters quarrelled over the fate of their father’s ashes.20 Disagreements between children from multiple marriages or relationships also reignite simmering tensions, as do those between adult children and a step-parent or surviving partner.21

One of the most acrimonious examples involves separated parents fighting over the remains of a dead child, as death prompts one final and decisive posthumous custody dispute.22 Consumed by feelings of bitterness towards each other, one parent may oppose the other’s choice of funeral arrangements just to be vindictive or spiteful.23 Disputes of this nature invariably involve claims as to who was the better parent in life, suggesting that this confers the right to decide what happens to the child in death.24

4.    The punitive element

Specific funeral arrangements can punish the deceased for physical or emotional harm which they inflicted on others in life. In Holtham v Arnold25 the deceased’s partner wanted to bury him in accordance with his wishes; the deceased’s wife insisted on cremation, despite the fact that the deceased had left her and his six children years earlier.26 To similar effect is Betty Brannam v Edward Robeson Funeral Home,27 in which the deceased’s estranged wife wanted to bury her husband’s remains, contrary to a stipulation in the deceased’s will that he be cremated and the ashes given to his long-term partner with whom he had three children.28

5.    Posthumous protection from harm

Here the aim is to protect the deceased from the person who caused their death, or repeatedly harmed them in life. A perfect illustration Scotching v Birch29 where a mother had pleaded guilty to the unlawful killing of her son yet wanted to bury the child in a cemetery close to where he was killed, and the father insisted on burial elsewhere.30 Domestic violence cases are another example. In Burnes v Richards,31 where the deceased had endured numerous assaults during a 17-year relationship with her partner and had left him two months before her death, the deceased’s adult children fought for custody of their mother’s remains.32 More sinister motives featured in Maurer v Thibeault33 in which the deceased’s estranged husband who had repeatedly threatened to kill her wanted to cremate his wife’s remains contrary to her wishes, and those of her family.34

6.    Fixing social identities and ‘reclaiming’ the deceased

Funerals and their attendant rites fix the deceased’s social identity,35 providing an opportunity for certain individuals to publicly affirm (or recast) their relationship with the deceased. This particular classification cuts across many of the areas already discussed; for example, both Holtham v Arnold36 and Betty Brannam v Edward Robeson Funeral Home37 could just as easily be viewed as estranged spouses attempting to reinstate themselves publicly as the deceased’s next-of-kin, despite past events. Disputes between a new spouse or partner and the deceased’s children from a previous relationship are ways of openly reclaiming the dead, as are conflicts between separated parents over the remains of a dead child.38

II.   Resolving competing claims: The common law rules

In the absence of a statutory framework, judges must apply common law rules around the duty of disposal and associated possessory rights to the dead. This results in the vast majority of funeral disputes being resolved by succession law rankings, which prioritise the personal representatives.39

Where the deceased made a will, the executor takes precedence over the deceased’s immediate family. For example, in Murdoch v Rhind40 the executor prevented the deceased’s wife from cremating her husband’s remains (fulfilling the deceased’s wish to be interred in the family burial plot), while in Grandison v Nembhard41 the executor could repatriate the deceased’s remains to his native Jamaica (again, in accordance with the deceased’s wishes) despite objections from the deceased’s only daughter who wanted to bury her father in England. The executor’s authority is not well-known, and being entitled to possession of the deceased’s remains may be difficult for family members to accept if the executor is unrelated to the deceased.42 Of course, the choice of executor may have been based on this person fulfilling the deceased’s funeral instructions,43 in which case the executor should have the final say (regardless of any familial opposition).44 However, an executor is not obliged to follow the deceased’s instructions;45 as the person legally entitled to possession of the body, it is for them to decide the manner and place of disposal.46

Where the deceased died intestate,47 the highest ranking presumptive administrator is legally entitled to dispose of the deceased’s body. Courts will rule in favour of a surviving spouse or civil partner in the event of a dispute with the deceased’s children, parents or siblings;48 where there is no spouse or civil partner, the strength of a particular claim depends on where the individual falls within the relational hierarchy.49 Unlike executors, presumptive administrators will have close family connections to the deceased. However, the emphasis on traditional family forms means that not all filial relationships are recognised, generating problems when the intestacy framework is mapped onto funeral disputes.50 For example, cohabitants are currently excluded from English intestacy laws and cannot claim their dead partner’s remains if spouses or other relatives assert preferential rights, and illustrated in Holtham v Arnold 51 where the court ruled for the deceased’s estranged wife despite objections from his long-term partner.52

Succession law rules also determine who controls deceased’s the ashes. Groves has noted that their physical structure, and the fact that ashes can be moved around, has “enabled people to bring disputes … that would be inconceivable if the deceased was still in body form”.53 However, these are every bit as contentious as. As a general rule, the rights of the deceased’s executor are paramount on testate deaths.54 If there is no will, the presumptive administrator takes priority, as illustrated in Doherty v Doherty55 where the deceased’s wife was entitled to her husband’s ashes and to delay their interment for a short time, despite objections from the deceased’s mother and siblings who wanted immediate burial in New Zealand in accordance with Maori tradition.56

III.  Separating equal claims

The common law framework is ineffective where two or more people have equal rights to possession of the deceased’s remains but conflicting views on what should happen to them. This typically occurs on intestate deaths,57 between relatives within the same kinship tier – for example, where siblings diverge on the funeral arrangements for a dead parent,58 or where parents are fighting over the remains of a dead child.59

The issue has arisen in a number of English and Australian cases, with courts devising a range of tests to separate equal claims.60 One of the most pressing concerns is the need for burial or cremation “without unreasonable delay”,61 making judges more likely to rule in favour of the individual whose arrangements are well advanced, and who is not intending to transport the corpse elsewhere.62 Other factors include the deceased’s association with a particular place,63 majority views within the relevant kinship tier,64 and the wishes of the custodial parent in disputes involving infant or minor children.65 And while decisions have occasionally been based on which person had the closest relationship with the deceased,66 both English and Australian courts appear reluctant to adopt this test.67

In contrast, other jurisdictions have specific legislation for resolving equal kinship disputes. For example, several Canadian provinces favour the elder or eldest person within the same category, so that disputes between parents, adult siblings or adult children of the deceased are determined solely on age.68 Turning to the US, the state of New Jersey looks for majority preference in disputes between the deceased’s surviving adult children or the deceased’s surviving brothers and sisters.69 This is also the starting point in the District of Columbia and Minnesota,70 though courts can apply other factors if majority consensus cannot be reached – including the “degree of the personal relationship between the decedent and each of the persons in the same degree of relationship to the decedent”.71 However, in the state of Pennsylvania, this is the only factor; in a dispute between equally ranked kin, courts should look to the “person who had the closest relationship with the deceased”.72

IV.  Flexibility versus finality?

Equal kinship disputes aside, funeral disputes are resolved by fixed rules of entitlement, which are relatively easy to apply and promote certainty of outcome. This has a number of benefits. Decisions can be reached within a compressed timeframe,73 since public health concerns combined with respect for the dead mandate prompt disposal.74 Meanwhile, judges do not have to unravel complex family histories or make difficult subjective value judgments on the merits of competing claims. For example, Hale J (as she then was) in Buchanan v Milton75 stressed that “the law cannot establish a hierarchy in which one sort of feeling is accorded more respect than other equally deep and sincere feelings”, sentiments echoed by Lord Brodie in C v Advocate General for Scotland:76

Determining what are appropriate funeral arrangements by reference to the quality of relationships within a family appears to me a task for which the court is quite unsuited.77

One could also argue that the existing framework actually benefits the deceased’s family by curbing the amount of (additional) damage being inflicted on an emotionally vulnerable yet extremely volatile family. As McKechnie J remarked in Ugle v Bowra & O’Dea:78

There has to be a balance between the need for prompt expedition of a matter that involves grief and loss to many people, together with the need to secure burial of a person reasonably promptly.… Pressures of time, stress and pain add to an already emotional situation where there are no winners and losers, only deeply held and legitimate feelings that are exacerbated by uncertainty.

Families will invariably dredge up past histories, as the emotional ante of the conflict is upped significantly by the raw, consuming emotions of death.79 In these circumstances, a quick, pragmatic solution operates as a vital form of damage limitation.

There is also a sense in which judges do not like having to deal with such cases, and not just because there is little scope for conciliation or finding a middle ground.80 Post-cremation ashes can be divided to allow feuding relatives to inter, scatter or keep their portion as they see fit;81 and while a court can sanction such an agreement82 it cannot force a split if one person objects.83 Where the dispute is over a dead body, there is no prospect of carving it up in this manner – public health issues concerns alongside the notion of respect for the dead would prevail, even if the protagonists favoured such a macabre compromise.84 At a human level, judicial attitudes towards families fighting over their dead have ranged from expressive empathy85 to feelings of discomfort and embarrassment.86 More revealing, perhaps, is the sense of judicial revulsion that permeates numerous decisions. For example, Hargrave J in Keller v Keller 87 described the dispute between the deceased’s adult children “as disrespectful of the deceased and offensive to ordinary standards of common decency”. Repeated references have been also made to contests such as these being “unseemly”,88 while one judge described a fight for custody of the deceased’s ashes as “all very sordid and unpleasant”.89 In expressing such negative sentiments, judges may also be reflecting societal distaste towards families fighting over their dead; such disputes infringe the basic concept of respect for the dead, and are the real reason why courts are inclined towards swift outcomes.

Public health concerns are also important, yet the emphasis placed on this factor is misleading. Where the contest centres on the deceased’s ashes, there is no associated risk, though courts have still stressed the need for a quick decision.90 In disputes over the fate of the body itself, there is no legal or scientific impairment to a corpse being placed in cold storage to halt the inevitable process of decay and allow protracted litigation.91 However, the spectre of human remains being refrigerated (or of ashes being held in specie) for prolonged periods while relatives engage in bitter public squabbles over who should arrange the funeral is not something that the law should encourage, and not just because of the potential impact on the deceased’s family.92 Societal attitudes also play an important role, as Martin J explained in Calma v Sesar:93

The conscience of the community would regard fights over the disposal of human remains such as this as unseemly. It requires that the court resolves the argument in a practical way paying due regard to the need to have a dead body disposed of without reasonable delay, but with all proper respect and decency.94

Any unnecessary delay in the disposal of the dead is “repugnant to the sentiment of humanity” and should be avoided where possible.95

The existing common law framework, with its emphasis on mechanistic rules of entitlement, has obvious benefits but suffers from two main drawbacks. The first is that courts cannot insist that the deceased’s remains are dealt with in a particular way;96 the person with the strongest legal claim is free to make whatever funeral arrangements they wish.97 Second, in applying this framework, judges can legitimately ignore the wishes of the dead as well as the opinions or sentiments of family members who do not qualify as personal representatives – including those based on religious and cultural beliefs. Treating these factors as extraneous to the decision-making process ignores their centrality to the actual dispute, though there are signs that this is changing.

V.    Deviating from the common law framework

Courts in this jurisdiction (and elsewhere98) are increasingly willing to evaluate the merits of competing claims in funeral disputes, rather than simply applying fixed rules.99 The final outcome may not be all that different; in many cases the executor or presumptive administrator’s right will still prevail, though this is no longer an absolute rule. At the very least, decisions made by personal representatives are now subject to greater scrutiny than before.

1.    Reviewing the personal representative’s decision

Though usually viewed as absolute,100 a number of cases have suggested that the personal representative’s right to possession of the deceased’s remains is a prima facie or refutable one.101 Equally relevant is the court’s ability to review funeral arrangements where the decision-maker is acting unreasonably or capriciously.102 The nature and scope of this power has been described as “formless and ill-defined”.103 However, a refusal to disclose the deceased’s final resting place might be capricious,104 while unreasonable behaviour can be alleged if the personal representative fails to consult other interested parties about the funeral arrangements or to take their views on the deceased’s funeral into account.105

The 2012 decision of the Supreme Court of New Zealand in Takamore v Clarke106 is one of the few substantive appellate judgments on the issue of funeral disputes, and contained (amongst other things) a substantive review of the role of the executor or presumptive administrator. In deciding the funeral arrangements, personal representatives should take account of “the views of those closest to the deceased”, including those based on “customary, cultural or religious practices, which a member of the deceased’s family … considers should be observed”.107 However, a majority of the court went further, suggesting that the personal representative’s decision could be challenged if “was not appropriate”.108 Once again, the nature and scope of this judicial power is unclear, though the threshold for “re-making” a particular decision is “still likely to be high”.109 There is also the broader question of whether courts outside New Zealand will follow suit, or simply confine themselves to reviewing decisions that are unreasonable or capricious.110

In England and Wales, s 116 of the Senior Courts Act 1981111 offers a more direct route for challenging the personal representative’s choice of funeral arrangements. This provision allows the High Court to appoint a different executor or administrator if “it appears … necessary or expedient” to do so because of “special circumstances”,112 and extends to funeral arrangements.113 In Buchanan v Milton114 the deceased, one of a generation of ‘stolen children’,115 lived in England with his adoptive family but reestablished contact with his birth mother and birth family in Australia as a young adult. Following his death in a road accident, both the deceased’s adoptive mother and the mother of his infant daughter were intent on cremation but were informed by the deceased’s birth mother that this was contrary to Aboriginal beliefs; she asked for the deceased’s remains to be returned to Brisbane for burial in his birthplace. Having initially agreed to this, the deceased’s adoptive mother changed her mind.116 Faced with a claim by the birth mother that she should be appointed as her son’s administrator under s 116 (and therefore entitled to decide the funeral arrangements), Hale J (as she then was) listed a number of relevant factors – including the deceased’s Aboriginal heritage and the importance attached to correct burial procedures, alongside the interests of the deceased’s Australian family and those of his infant daughter. While these constituted ‘special circumstances’ under s 116, it was neither ‘necessary’ nor ‘expedient’ to replace the deceased’s daughter (represented by her mother and the deceased’s adoptive mother) as administrator. A different decision was reached in Burrows v HM Coroner for Preston117 where the deceased’s uncle successfully invoked s 116 to oust the deceased’s mother as presumptive administrator. The court accepted that there were “powerful arguments” in favour of the deceased’s natural mother, as the highest ranking next-of-kin.118 However, in granting custody of the deceased’s remains to his uncle, Cranston J held that the deceased’s desire to be cremated (which the uncle was intent on fulfilling) combined with the fact that the uncle and his wife had been the deceased’s “psychological parents”119 for many years constituted ‘special circumstances’ under s 116, and necessitated the uncle’s appointment as presumptive administrator.120

2.    Religious and Cultural Imperatives

Religious and cultural imperatives shape attitudes towards death and disposal, yet can be a source of conflict within families.121 Different factions may have fundamentally different beliefs, resulting in divergent funeral preferences;122 even shared beliefs can generate disagreements around the extent to which these should be reflected in the funeral arrangements.123 The impact on the common law priority rankings is unclear, as is the influence of the deceased’s own religious and cultural beliefs when determining who gets possession of the body. Neither issue has been comprehensively addressed in English law, beyond the litigation in Ghai v Newcastle City Council,124 which raised a slightly different question: whether Mr Ghai could compel Newcastle City Council to facilitate his wish to be cremated on an open-air funeral pyre, in accordance with his orthodox Hindu beliefs. However, funeral disputes fuelled by competing religious and cultural preferences may arise more frequently, as multi-faith or multi-ethnic families have different views about what happens to the body on death. Again, English courts could look to Australia for guidance, where the issue has driven numerous disputes involving indigenous peoples.

Initially, Australian courts were of the opinion that spiritual and cultural factors need not influence the deceased’s funeral arrangements. For example, in Calma v Sesar125 the deceased and his parents were of Aboriginal descent; the mother had arranged for a Catholic burial in Darwin, while the father had organised burial in the family plot at Port Hedland where the deceased had been born. Relatives on both sides of the family were deeply divided over the issue, the deceased’s paternal grandfather, arguing that the deceased should be buried in his Aboriginal homeland. Refusing to be swayed by these and other “imponderables”,126 Martin J concluded:

[I]ssues such as these could take a long time to resolve if they were to be properly tested by evidence in an adversary situation. A legal solution must be found; not one based on competing emotions and the wishes of the living, except insofar as they reflected a legal duty of right. That solution will not embrace the resolution of possibly competing spiritual or cultural values.127

Agreeing with this statement, Ashley J in Meier v Bell128 stressed the need to adhere to established legal principles when resolving funeral disputes; courts could not depart from these simply to accommodate competing claims, whether “founded on matters religious, cultural, or of some other description”.129

Both judgments were heavily criticised, not just for their refusal to take such matters into account but for their rigid adherence to a common law framework that did not reflect the fundamentally different kinship networks that exist within indigenous communities, where the emphasis is on collateral (as opposed to lineal) relationships and where extended notions of kinship do not necessarily match conventional Western constructs of family.130

However, the decision in Jones v Dodd 131 – involving a dispute between the deceased’s former de facto partner132 (and mother of his two young children), and the deceased’s father – signalled a different approach. The initial decision133 favoured the father as the deceased’s next-of-kin,134 who was consequently free to bury his son within the geographical area of his family’s tribe, according to Aboriginal law and custom. Affirming this decision, Perry J (who delivered the judgment of the Full Court) refuted claims that the deceased’s partner could claim letters of administration on behalf of her children because the presumptive administrator rule was not “a rigid proposition or principle of law”.135 Perry J also criticised the fixation with strict legal rights in both Meir and Calma:

[T]he proper approach in cases such as this is to have regard to the practical circumstances, which will vary considerably between cases, and the need to have regard to the sensitivity of the feelings of the various relatives and others who might have a claim to bury the deceased, bearing in mind also any religious, cultural or spiritual matters which might touch upon the question.136

Judges should not be influenced by “expressions of pure emotion or arbitrary expressions of preference”;137 however, “proper respect and decency”138 required them to take account of religious and cultural values in resolving funeral disputes.

Since Jones, Australian courts have been more cognisant of religious and cultural imperatives, even if the final outcome has not been significantly different. For example, in Dow v Hoskins139 the court accepted the importance that Aboriginal custom and culture placed on burying the deceased beside his dead father; and while cultural imperatives were of “primary importance”,140 these did not displace the common law right of the deceased’s partner as next-of-kin and mother of two of his children to bury him elsewhere.141 The deceased’s own beliefs have also featured in a number of cases, with courts dismissing claims from other family members where the deceased did not espouse the same spiritual values or maintain a traditional lifestyle, and the person entitled to custody of the deceased’s remains intends to organise the funeral based on what the deceased wanted.142

While these cases suggest a more nuanced approach, judges still tend to apply the common law framework in legalistic matter; religious and cultural values have much greater prominence, yet often fail to displace the rights of the executor or presumptive administrator when it comes to deciding the fate of the deceased’s remains.143 However, human rights arguments may strengthen the case for courts to deviate from the existing framework.144

3.    Human rights arguments

Human rights are engaged in funeral disputes, because “the disposal of human remains touches on matters of human identity, dignity, family, religion and culture”.145 In England and Wales, these basic protections are enshrined in the European Convention on Human Rights, now part of domestic law throughout the UK since October 2000.146 There is growing evidence in both the jurisprudence of the European Court of Human Rights (‘ECtHR’)147 and domestic courts that Convention rights can influence the fate of the recently dead.148 For example, specific Convention rights may strengthen the case for upholding the deceased’s funeral directions, something that is analysed in the next chapter.149 For now, the focus is on using human rights to challenge the personal representative’s choice of funeral arrangements.

(a)    Family preferences and Article 8

Harris has argued that the right to private and family life under Article 8(1)150 includes the process of bereavement and execution of funeral rites,151 something that has been reflected in ECtHR jurisprudence to date. Although not dealing with funeral disputes, the decisions in Pannullo and Forte v France152 and Girard v France153 both suggest a legitimate family interest in the disposal of a loved one. In the former, damages were awarded to the parents of a 4-year-old child, after a delay of seven months between French authorities performing an autopsy and returning the child’s body to her parents. The court held that the authorities had not struck the right balance between the applicants’ right to private and family life and the need to conduct an effective investigation into the child’s death, in violation of Article 8. In Girard, the applicants’ daughter had died in suspicious circumstances. Following a post-mortem, the body was returned to the applicants for burial; it was exhumed three months later and new investigative samples taken,154 which eventually led to a man being convicted of the deceased’s murder. Following repeated requests from the applicants, a formal decision to return the samples was issued in March 2004 but the samples were not actually returned until late July. While taking DNA and other material from a corpse for forensic purposes does not infringe Article 8,155 the court held that the right to bury one’s relatives is protected by Article 8(1). Like Pannullo, the four-month delay in returning the samples after the formal decision had been made infringed the applicants’ rights to private and family life.156

Domestic courts have also acknowledged that Article 8(1) is engaged in cases involving disposal of the dead. For example, the Article 8(1) rights of the deceased’s mother and uncle (as well as the deceased himself) featured strongly in Burrows v HM Coroner for Preston,157 while the same judge in Ghai v Newcastle City Council 158 accepted that “the respect accorded to private (and indeed family) life … can extend to aspects of funeral arrangements … because they are so closely related to a person’s physical, psychological or familial identity”.159 These (and other judicial comments) were endorsed by Lord Brodie in C v Advocate General for Scotland.160 In this case, the deceased was a soldier who had died while on a training mission in Germany; his widow wanted to bury him with full military honours in Forfar, while the deceased’s mother (who was also executrix under her son’s will) wanted to bury him some 45 miles away in the Wemyss, Fife.161 The widow’s petition for judicial review of the decision to release the deceased’s remains to his mother as executrix was dismissed as incompetent by the Court of Session,162 though the underlying arguments were discussed at length. A key feature was an alleged interference with the widow’s Article 8(1) rights, in being deprived of the opportunity to arrange her husband’s funeral and to determine where he was interred. Lord Brodie was in no doubt that these rights were engaged:

[Article 8] may be engaged by an act of the state which touches on a family’s freedom to determine what may be described as the place and modalities of burial of a deceased member of that family, to have custody of the body for the purpose of burial and to participate in any funeral ceremony.163

On the facts, any interference would be justified in accordance with Article 8(2),164 though the deceased’s widow eventually succeeded in civil proceedings against his mother and a full military burial was held in Forfar.165

While most of these cases concerned alleged infringements by the State or its various bodies, the doctrine of horizontal effect means that these and other Convention rights could be raised in private law disputes around the fate of the dead. Creative use of Article 8(1) and its guarantee of a right to respect for private and family life might enable the deceased’s immediate family or those in a close personal relationship with the deceased to contest the personal representative’s decision.166 For example, where a spouse (acting as executor or presumptive administrator) is refusing to inter the body in the family burial plot, this could constitute an interference with the Article 8(1) rights of the parents and siblings, as well as other family members.167 The fact that Article 8(1) extends beyond traditional domestic law classifications of family168 could also benefit those omitted by intestacy-based kinship designations. For example, a cohabiting partner might oppose the common law entitlement of the deceased’s parents (as joint presumptive administrators) to make their son’s funeral arrangements, especially where the parties have different views on disposal of the body.169 A step-child of the deceased (especially one who lived with their step-parent) could also rely Article 8(1) in the event of a funeral dispute,170 as could foster parents.171

However, even if such rights are engaged, they are subject to certain limitations. As with other Convention rights, those guaranteed by Article 8(1) are defeasible and legitimate interference is permissible under Article 8(2) where this is “in accordance with the law” and deemed to be necessary in the interests of “public safety” or “for the protection of health or morals”. For example, in Scotching v Birch172 the mother’s Article 8(1) rights did not override the common law forfeiture rule and its underlying public policy rationale that a person should not benefit from their own crime. Other restrictions may also come into play. For example, a husband’s desire to have his wife’s remains preserved and permanently displayed in their living room (arguably within the scope of Article 8(1)) might be defeated by his wife’s family on the grounds of public health and human dignity,173 despite the husband’s entitlement as personal representative.174 Article 8(1) rights are also subject to practical limitations; for example, a desire to bury the deceased in family grave (again, a possible aspect of private and family life) might be impossible to fulfil because the plot is full.

Before leaving Article 8, two other points must be addressed. First, because funeral disputes inevitably involve warring family factions, there will be valid Article 8 arguments on both sides. This has been acknowledged in a number of cases, including C v Advocate General for Scotland.175 In deciding that any interference with the widow’s Article 8(1) rights would be both proportionate under Article 8(2) and necessary to protect the rights of another family member (the deceased’s mother), Lord Brodie remarked:

The [widow’s] complaint is that the transfer of custody and therefore control of the body to the [mother] … adversely affects the [widow’s] rights to family life. However, were the transfer to be … to the [widow], the [mother] … could complain that her rights to family life have been adversely affected. Compromise appears impossible. A state of impasse has been reached. The first respondent176 has been put into a position where he has to exercise a choice as between near relatives each of whom has rights protected by art.8.1. To respect the rights of both he cannot avoid favouring one.177

Cranston J had been placed in a similar position in Burrows v HM Coroner for Preston178 when assessing the respective Article 8(1) rights of the deceased’s mother and paternal uncle.179 In these circumstances, the court must “focus intensely on the comparative importance of the different rights being claimed, and … balance those competing rights so as to minimise the interference with each to the least possible extent”.180 Second, it seems inconceivable that judges would ignore the deceased’s own funeral preferences when evaluating rival family claims under Article 8. For example, would a court really allow a personal representative to proceed with cremation where the deceased opposed this method of disposal and wanted to be buried, or vice versa? As in Burrows, courts may look more favourably on the Article 8(1) rights of those family members who are willing to do what the deceased wanted.

(b)    Religious and cultural imperatives and Article 9

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