Nobody would like to think that their family and loved ones would argue over such a subject as who owns their ashes after their death, but sadly this is a situation that does occur. And, unfortunately, is one that our Private Client team at Giles Wilson has to deal with more often than would be imagined.
In this blog post, our Wills and Trusts expert, Chantelle Bradley, discusses the legal standpoint on who owns a person’s ashes after a cremation and what steps you can take to avoid a dispute.
In What Scenarios Could Such Disputes Arise?
One example is where a second marriage has occurred, leaving a spouse who wishes for the ashes to be kept or interred in a location that is contrary to the wishes of the children of the deceased. Or, where there is more than one adult child and they disagree on geographical or religious grounds. Or, as is not uncommon following a death, due to emotional grounds or one character wanting to take control.
As sad as it sounds, perhaps it is not too difficult to see how such uncomfortable situations can develop.
What is the Legal Position on Funeral Arrangements?
Surprisingly, the legal position is not clear as there is no ownership over a body. As there is also no legal definition of ‘next of kin’, it can be seen why, when coupled with emotion, we have a recipe for dispute. The Gazette states “a quarter of deaths in the UK lead to family disputes” and of these, nearly 50% reach their peak during the funeral itself. Statistics also suggest that a tenth of these disputes are linked directly to funeral arrangements.
There are some rules that govern the right to deliver the body to a funeral director and arrange the funeral, but these rules do not necessarily apply to the ashes once the funeral is over. These rules are a combination of case law (a significant case known as Rees v Hughes in 1946), statutory rules imposed on crematoriums, and the Human Rights Act 1998.
What Can You Do to Avoid a Family Dispute?
The clearest advice is to write a Will. The named Executor(s) in the Will is the person(s) who has the duty to deal with the body and arrange the funeral. This provides some certainty as to who can make the funeral arrangements, sign the paperwork, and thereafter take possession of the ashes.
If you have any concerns as to how your family will deal with your funeral and your ashes, we highly recommend you make a Will to outline your preferred arrangements. Make sure you discuss any worries in full with your solicitor when you are writing a Will so that the Executor is chosen carefully and the instructions are set out in a workable way.
If you appoint more than one Executor, then ensure that they are not likely to disagree between themselves or be influenced by others. An Executor does not need to be a family member, and they should usually consult with those close to you, but at least the final decision maker has been appointed.
A word of warning, however. Crematoriums are subject to their own regulations; if another person has in fact arranged the funeral and signed the paperwork, then they are termed the Applicant. These regulations can lead to the undertaker releasing the ashes to that Applicant.
Under Article 8 of the Human Rights Act 1998 relating to respect for family life, and under Article 9 relating to freedom of conscience, thought and religion, there is potentially rights to challenge this situation. However, very few cases get to Court on the issue of funeral arrangements or the disposal of ashes, and when they have, the decisions have been inconsistent.
Advice for Funeral Arrangements and Ashes Disposal
At Giles Wilson, we would recommend that you make a Will with clear directions and careful appointment of Executors. Furthermore, should you find yourself embroiled in such a dispute, contact us immediately as the earlier that advice is sought, the better and easier it is to resolve.
We have a dedicated team of Private Client solicitors who offer expert advice on any issues surrounding Wills, Trusts, and Probate. If you require legal assistance with a dispute over funeral arrangements or writing a Will, call 01702 477106 or email firstname.lastname@example.org.