Funeral and Other Requests

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20 Funeral and Other
Requests

20.1 Funeral arrangements

Many people have strong views about the sort of funeral they want. Is an expression of their wishes binding?

Any wishes expressed in the will by the deceased are not binding, although they are important (see para 20.1.2).

There is no proprietary interest in a dead body (see Williams v Williams (1881–82) LR 20 Ch D 659 and R v Sharpe (1857) 26 LJMC 47). However, various people have rights and duties in relation to it.

20.1.1 Who has rights and duties in relation to a dead body?

The deceased’s PRs have the common law duty to arrange for the proper disposal of the deceased’s remains. Where PRs have not yet been appointed, the person with the best right to the grant of administration takes precedence. Where two or more persons rank equally, then the dispute will be decided on a practical basis (see Paul Matthews (ed), Jervis on Coroners (Sweet & Maxwell, 12th edn, 2002), para 7–03, n.40; 7–05,
n.41).

As the executors’ authority derives from the will and not from the grant, they are entitled to obtain possession of the body for the purposes of burial prior to the grant (by injunction under section 37 of the Senior Courts Act 1981, if necessary).

Administrators also have a common law duty to dispose of the body but as their authority derives from the grant, they may not be able to obtain an injunction for delivery of the body prior to obtaining the grant.

The order of priority for taking a grant is set out in rules 20 and 22 of the NCPR 1987. However, the court has power under section 116 of the Senior Courts Act 1981 to pass over the person with the best right if by reason of any special circumstances it appears to be necessary or expedient to appoint someone else. In Buchanan v Milton [1999] 2 FLR 844, Hale J said in relation to an application to pass over those entitled because of a

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dispute over the appropriate funeral arrangements that ‘the courts should be slow to entertain proceedings such as these … They delay the proper disposal of the body and the normal processes of grieving while bringing further grief in themselves’.

A householder has a common law duty to dispose of a body situate under his roof. Where the deceased lived alone, the duty passes to the local authority (section 46(1) of the Public Health (Control of Disease) Act 1984). Local authorities will not pay if there are assets and may trace relatives to authorise the cost of the funeral.

If the deceased died in hospital, the hospital authorities are treated as ‘the householder’. In Lewisham NHS Hospital Trust v Hamuth [2006] EWHC 1669 (Ch), [2006] All ER (D) 145, there was a dispute as to the validity of the will and, therefore, as to the validity of the appointment of the executor. The executor wished to follow the deceased’s wishes and cremate the body. The family wanted to bury the body in the family plot. There was no possibility of resolving the dispute over the will within an acceptable period. The court, therefore, declared that the hospital, being in lawful possession of the body, was entitled to decide the appropriate means for the disposal of the body.

20.1.2 Effect of the deceased’s wishes

According to Williams v Williams...