Funeral and burial disputes – who makes decisions if there is no Will?

The loss of a loved one is a difficult time and can be made more complicated if there is a dispute about the funeral, burial or scattering of ashes arrangements. Although disputes of this type  rarely reach the court, these disputes have become more common since Covid-19 due to restrictions on travel and limits on how many people can attend a funeral.

Who has the final say in funeral decisions, and what happens if there is no Will?

Imagine a situation where divorced or separated parents have lost their child. They live in different parts of the country with their respective new partners. The intestacy rules apply if no Will has been made by the deceased – these rules govern who is to benefit from an estate and the order of priority for application for a grant of letters of administration. It is that second aspect that comes into the picture with funeral and burial arrangements.

While there is no right of ownership of a body, there is a legal duty to arrange for its proper disposal. If the deceased left a Will, the named executor is entitled to take possession of the deceased’s body and is responsible for disposing of the body. If there is no Will, it is the person who has priority on intestacy (the administrator).

In the example of a divorced couple, the parents of a child would both rank equally in the order of priority to apply for the grant and this could cause a deadlock and this is when an application to court might be needed to resolve the dispute.

Funeral dispute case examples

In Fessi v Whitmore (1999), the 12-year-old son of divorced parents tragically died in an accident just a few days after moving to a new home in Wales with his father, who had been his primary carer since the divorce. The father wanted the son’s ashes to be scattered near his new home, so that he could tend to the grave, but the mother wanted them scattered in Nuneaton, where the family had lived before the divorce, and where the child’s grandparents’ ashes had been scattered.

Although the child had lived with his father that fact alone did not mean that the father’s voice should prevail. The court concluded that the child’s ashes should be scattered at the Nuneaton Crematorium, because:

1. It was a place where all the family could have some focus.
2. It was the place where the child’s paternal grandfather’s ashes had been scattered and therefore had a natural focus for the father to attend.
3. Taking everything into account, it seemed a place where all members of the family could come together to see a fitting memorial to the child’s life.

In a more recent case example, Re E (A Child:Burial Arrangements) [2019] sadly involved the burial arrangements for an infant child murdered by the mother’s cohabitee partner and the mother and father disputed burial arrangements.  The court ultimately determined the dispute in favour of the father.

What should I do if I’m involved in a funeral dispute?

It is important to act swiftly if a dispute arises over the manner and method of burial or scattering of ashes. There have been applications made to the court too late, and the burial has been completed.

Urgent injunction proceedings may be necessary to prevent the release of the body by the coroner until the resolution of the dispute.