Funeral Wishes - who decides?

Many testators wish to direct their executors how they wish their body to be disposed of after their death. Some even wish to stipulate hymns to be sung at their service or more complex funeral arrangements. As these are merely wishes and not binding who has the final decision over the disposal?

First it must be considered why the wishes contained within a Will are not legally binding. The answer to this is twofold. Firstly, the Will may not be discovered for days or even weeks after a funeral has already taken place so the practical implications of making the wishes binding would be vast. Imagine if an executor could be sued for not carrying out the funeral as the testator directed! Secondly, a Will is a direction to deal with property and there is no ‘property’ in a dead body, therefore the Will cannot be used to provide enforceable conditions for disposal.

In the majority of cases the authorities have decided that the executor has the right to decide the arrangements or, where there is no Will, the person with the highest right to take out the Grant. This person may carry out the wishes contained within a Will but is not legally bound to.

The case of Lewisham Hospital NHS Trust v Hamuth & Others [2006] highlighted this fact. A dispute took place between the executor and the deceased’s family and the court clearly stated that it was the executor who could decide. (NB in this case there was also a dispute over the Will appointing the executor so the hospital was given the power to decide on the disposal of the body).

So what if more than one person is equally entitled to decide and they do not agree? In Fessi v Whitmore [1999] the parents of a deceased child couldn’t agree where the child’s ashes should be scattered or interred. The judge likened the parents to being trustees and directed that a decision should be reached that did ‘justice and fairness to both sides’.

The division of ashes has been a source of controversy within the Courts with judges taking opposing views on whether it was an option or ‘wholly inappropriate’.
In one case an executor, one of three appointed, disagreed with the internment of his father’s ashes which had already been carried out by his two sisters. He requested that one third of the ashes be disinterred and given to him for disposal. The judge refused his application stating that a significant period of time had elapsed since the internment and that the majority decision of the executors should be accepted.

The Courts accept that making decisions relating to the disposal of a deceased’s body is difficult but suggest it should ‘weigh the competing claims and arrive at what one would truly call a legal judgement’.

For more details on Funerals or for information on setting up a Funeral Plan contact Legal & Contract Services on 0845 017 8250.

Report by Society of Will Writers 5th May 2010