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Funeral Arrangements: Who is in Charge?16th January 2020 Will Disputes
Following the death of a loved one, it is common to arrange a funeral, burial, cremation or memorial service. This may be guided by the wishes of the loved one before they passed away, but if a dispute arises over funeral arrangements, who is legally entitled to have the final say?
Whilst it is common for individuals to include their wishes relating to funeral arrangements in their final Will and Testament, it is important to note that these wishes are not binding. Therefore, whilst this can reflect the wishes of the deceased and can offer useful direction, this does not provide any guarantee that these wishes will be followed. Where there is no Will in existence, there might be nothing that gives guidance as to what the deceased would have wanted and disputes can often arise as a result.
Following the death of a loved one, it is not possible for anyone to claim ownership over a person, however a right of possession exists, which is usually held by the Personal Representative (“PR”) of the deceased’s estate. If the deceased has left a Will, the PR is the Executor appointed under the Will and if the deceased has died intestate, the PR is the Administrator of their estate, who would be the person appointed in line with the Intestacy Rules. The right of possession does not fall to the next of kin as some people often assume.
Further to this, the PR has a duty to dispose of the body of the deceased and therefore it is the PR who has the final say regarding any funeral arrangements. This can understandably lead to disputes, as the PR has the authority to overrule close family members of the deceased regarding funeral arrangements, which can be a particularly emotive and personal subject for those left behind. For example, if the deceased has appointed their cousin as the Executor under their Will, the cousin would become the PR of the deceased’s estate and could overrule other family members, such as the deceased’s wife and children, with regards to funeral arrangements. This can be worsened due to the emotional pressure and upset of recently losing a loved one, which can create a more hostile environment that is more likely to result in disagreements.
In many cases the PR would no doubt consider and follow the wishes of the close family but in certain circumstances, this might not be possible or desirable and as such disputes can arise at what is already a difficult time and where relations may already be strained.
In the case of Laing v John Poyser Solicitors , the deceased’s son disagreed with the Executor’s decision to cremate his late mother (despite her wishes) and sought an injunction to prevent the Executor from arranging the cremation. In this case, a firm of solicitors were appointed as Executor of the deceased’s estate. The Judge refused to grant the injunction on the basis that the Executor was in lawful possession of the body of the deceased and therefore, they had the right and the duty to make arrangements for the disposal of the body. This demonstrates the difficulties that can arise when close family members disagree with the actions of a PR.
Discussing someone’s wishes before they pass away would assist to ensure such a dispute does not arise but this is not always practical and often those loved ones left behind and the PRs are left in a difficult position as to how to proceed.
At JMW we are experienced in handling disputes of this nature that may arise and we can offer professional, experienced advice that is appropriate to your circumstances. If you are involved in a dispute, please contact us to discuss how we can be of assistance.