Burial Disputes
| Author | Nasreen Pearce |
| Pages | 133-153 |
Chapter 10
Burial Disputes
10.1 INTRODUCTION
It is not unusual for family conflicts to arise as to who is legally entitled to make the decision on how and where the deceased’s body should be disposed of. With the increase in multiple marriages, civil partnerships and other family relationships, and the resulting complex arrangements, disputes can arise as to who has rights over the deceased’s body. Conflicts can arise between an estranged wife and mistress, or a widow or widower and step-children, between parents of the deceased and his/her wife/husband/civil partner/cohabitant or between children and step-children of the deceased. Disputes may also arise between parents where their views differ as to how and where to dispose of their child’s body or ashes. The deceased may have indicated in his/her will his/her wishes concerning the disposal of his/her body, but those wishes may not accord with the beliefs, religious or otherwise, or wishes of those who are left behind. It is thus important to have some knowledge of the law governing the disposal of the deceased’s body so that informed decisions may be taken amicably rather than through a confrontational approach and litigation. Where a dispute cannot be resolved by agreement and an application is made to the court, in determining the competing interests of the parties the court must take into account the provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (European Convention on Human Rights) and the importance given in any determination to the wishes and feelings of the deceased person whose body is the subject of the dispute.
10.2 OWNERSHIP OF THE BODY
The will of the testator/testatrix will usually contain a provision setting out the testator’s/testatrix’s wishes on the disposal of his/her body. The direction, however, does not have any effect in law and is unenforceable. This is because at common law, subject to certain limited exceptions, there is no property in a corpse under
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English law and a person has no property in his/her body after death (see R v Sharpe (1857) 21 JP 86, and confirmed in Williams v Williams (1882) 20 Ch D 659 and Dobson and Another v North Tyneside Health Authority and Another [1996] EWCA Civ 1301). There is a duty at common law, however, to arrange for its proper disposal and this falls on the deceased’s personal representatives (see Buchanan v Milton [1999] EWHC B9 (Fam)). It does not form part of his/her estate and it cannot pass under a person’s will or on intestacy. With a few exceptions, any provision in a will on disposal of the deceased’s body has no legal effect and cannot be enforced. This does not mean that such indications are to be ignored as irrelevant. Any expression of the testator’s/testatrix’s wishes or direction as to disposal will, nevertheless, be a relevant consideration along with the wishes and feelings of others, as under the European Convention on Human Rights a person’s wishes and feelings are matters of relevance in any dispute, particularly under Article 8(1) (see Borrows v HM Coroner for Preston [2008] EWHC 1387 (QB)).
10.3 EXCEPTIONS TO THE RULE ON TESTATOR/ TESTATRIX DIRECTION OVER BODY
10.3.1 Human Tissue Act 2004
At common law, if a dead body or its part had undergone a process for medical or scientific purposes it could be considered of value and capable of being regarded as property (see e.g. R v Kelly; R v Lindsay [1996] QB 621). There are now statutory provisions which enable specific directions given by the testator/testatrix for his/her body to be used for medical research, education and organ donation to be respected and to apply. Part 1 of the Human Tissue Act 2004 sets out the activities for medical research, education or transplantation which are authorised under the Act. Save in relation to examination of the body under the authority of a coroner, consent is necessary of the deceased, of a person nominated by him/her or of a qualifying person. A direction given by the deceased in a will or elsewhere concerning the use of his/her body for medical research, education or transplantation can thus be challenged on the grounds that the appropriate consent is invalid on the ground of non-compliance with the provisions in sections 2 and 3.
10.3.1.1 Authorisation of activities for scheduled purposes
Section 1(1) of the Human Tissue Act 2004 sets out the following activities that can be lawful if done with appropriate consent:
(a) the storage of the body of a deceased person for use for a purpose specified in Schedule 1, other than anatomical examination;
(b) the use of the body of a deceased person for a purpose so specified, other than anatomical examination;
(c) the removal from the body of a deceased person, for use for a purpose specified in Schedule 1, of any relevant material of which the body consists or which it contains;
(d) the storage for use for a purpose specified in Part 1 of Schedule 1 of any relevant material which has come from a human body;
(e) the storage for use for a purpose specified in Part 2 of Schedule 1 of any relevant material which has come from the body of a deceased person;
(f) the use for a purpose specified in Part 1 of Schedule 1 of any relevant material which has come from a human body;
(g) the use for a purpose specified in Part 2 of Schedule 1 of any relevant material which has come from the body of a deceased person.
Under section 1(2) of the Human Tissue Act 2004, the storage of the body of a deceased person for use for the purpose of anatomical examination is lawful if done:
(a) with appropriate consent, and
(b) after the signing of a certificate—
(i) under section 22(1) of the Births and Deaths Registration Act 1953
(c. 20), or
(ii) under Article 25(2) of the Births and Deaths Registration (Northern Ireland) Order 1976 (S.I.1976/1041 (N.I. 14)),
of the cause of death of the person.
And under section 1(3) of the Human Tissue Act 2004, the use of the body of a deceased person for the purpose of anatomical examination shall be lawful if done:
(a) with appropriate consent, and
(b) after the death of the person has been registered—
(i) under section 15 of the Births and Deaths Registration Act 1953, or
(ii) under Article 21 of the Births and Deaths Registration (Northern Ireland) Order 1976.
Schedule 1 lists the following scheduled purposes referred to under Part 1 of the Human Tissue Act 2004:
1 Anatomical examination.
2 Determining the cause of death.
3 Establishing after a person’s death the efficacy of any drug or other treatment administered to him.
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4 Obtaining scientific or medical information about a living or deceased person which may be relevant to any other person (including a future person).
5 Public display.
6 Research in connection with disorders, or the functioning, of the human body.
7 Transplantation.
‘Anatomical examination’ and ‘anatomical purposes’ are defined in section 54 of the Human Tissue Act 2004. ‘Anatomical examination’ means ‘macroscopic examination by dissection for anatomical purposes’, and ‘anatomical purposes’ means ‘purposes of teaching or studying or researching into, the gross structure of the human body’.
10.3.1.2 ‘Appropriate consent’
It will be observed that ‘appropriate consent’ is fundamental to the use of the body for any of the purposes set out in Schedule 1 to the Human Tissue Act 2004. Sections 2 and 3 set out what ‘appropriate consent’ means. In relation to a child, subject to the child being of sufficient age, maturity and understanding, ‘appropriate consent’ means his/her consent. To be valid, the consent must be in writing and:
(a) it must be signed by the child concerned in the presence of at least one witness who must attest the signature; or
(b) it is signed at the direction of the child in his/her presence and in the presence of at least one witness who attests the signature (section 2(4) and
(6)). Note: while a child under 18 is not eligible to make a will, he/she is able to consent to his/her body/body parts being used for medical purposes on his/her death.
Where the child has not given any consent, it is open to a person who had parental responsibility for the child immediately before his/her death, or if no person had parental responsibility for the child a person who had a qualifying relationship with him/her at the time, to give consent for the use of the body for scheduled purposes (section 2(7) of the Human Tissue Act 2004).
In relation to an adult, ‘appropriate consent’ means consent of that person. Although the Human Tissue Act 2004 does not make any provision for a prescribed form for giving consent, it sets out the procedure which must be followed to provide valid consent. Section 3(5) states that the consent must be given in writing and it is valid only if:
(a) it is signed by the person concerned in the presence of at least one witness who attests the signature,
(b) it is signed at the direction of the person concerned, in his presence and in the presence of at least one witness who attests the signature or
(c) it is contained in a will of the person concerned made in accordance with the requirements of—
(i) section 9 of the Wills Act 1837 (c. 26), or
(ii) Article 5 of the Wills and Administration Proceedings (Northern Ireland) Order 1994 (S.I. 1994/1899 (N.I. 13)).
Where the deceased has given a valid consent, the deceased’s direction cannot be overruled by family members and they cannot prevent the removal or examination or use of the body or parts of the body as the case may be. Although, in practice, the authorities consult relatives and consider their objections, the authorities are not under a duty to consult relatives or consider their objections if a valid consent has been provided by the deceased.
The overarching principle under the Act had been the requirement for express written consent from the individual or a nominated person or...
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