Probate Corner - Article 2 - Who decides on funeral arrangements?

One of the first tasks to deal with following a death will be to make the funeral arrangements. In the majority of cases family members will attend to this task and arrangements are usually uncontroversial. However, in some cases disagreement can arise and, in those circumstances, it may be necessary to consider the legal position to establish which individuals have the right to determine the funeral arrangements.

As a starting point it is worthwhile noting that there is no ownership of a body after somebody has died. Additionally, any directions that the deceased may have given for their funeral (whether orally or in writing) are not legally binding. Instead, possession of the body belongs to the executors of the deceased's estate where the deceased left a valid Will. In all other cases possession of the body will pass to the deceased's next of kin. This means that it will either be the executors or the next of kin who have legal standing to decide on the funeral arrangements.

There is no single legal definition of next of kin in English law. In this context next of kin is treated to mean the nearest blood relations who are alive at the date of death, or the deceased's spouse.

Given that the right to make funeral arrangements rests with the executors, it is crucial to locate a copy of the deceased's Will as soon as possible after the death. This is particularly important where members of the family disagree over the funeral arrangements. In those circumstances the executors may need to step in and mediate. Where agreement cannot be reached, the executors may have to take the final decision. This is undoubtedly a difficult and sensitive role for the executors to play, but one which may be vital in the circumstances.

Reference to the Will is also important as the Will often contains a note of the deceased's funeral wishes. As noted above, these are not legally binding but can clearly be crucial, particularly if there is disagreement between family members. Where there are wishes set out in the Will but there is nonetheless disagreement between family members then the executors will need to consider how much weight should be given to the wishes of the deceased. They will need to take into account factors such as:

1. the length of time since the wishes were expressed,

2. whether the reasons for the wishes have been given,

3. whether there is any suggestion that the deceased did not have full mental capacity at the time the wishes were written, or whether their state of mind may have changed since writing those writing (i.e., there had been a family rift at the time which had since been resolved).

4. any personal knowledge that the executors had about the deceased and their wishes.

Where there is no Will (and therefore no executors) and there is a disagreement between family members then the view of the person who will be legally entitled to administer the deceased's estate should prevail.

Ultimately, if no agreement can be reached then the Court has jurisdiction to determine the issue, although this should of course be seen as an absolute last resort. One of the most recent cases involving the determination of funeral arrangements was the case of Anstey v Mundle [2016] EWHC 1073 (Ch). In that case there was disagreement between the daughters and the niece of the deceased about where the deceased should be buried. The deceased had been born in Jamaica but had lived and worked in the UK for many years. In that case the Court applied the following criteria in arriving at the decision that the deceased should be buried in Jamaica:

• the deceased’s wishes;
• the reasonable requirements and wishes of family;
• the place the deceased was most closely connected with; and
• that the body be disposed of with all proper respect and decency and, if possible, without further delay.

Although a deceased's funeral wishes are not binding, setting out clear wishes which are easily accessible following death is essential if misunderstandings and disagreements are to be avoided. If those wishes are shared with family members by the deceased during their lifetime, then this too will help avoid any nasty surprises and potential disputes.