How should a funeral dispute be resolved?

In recent years conflicts surrounding the funeral arrangements for a deceased person have become increasingly common. Issues such as families living further away and travel constraints, differing views on how a funeral should take place, family estrangement and loved ones not being informed of funeral arrangements exacerbate an already emotional time for the deceased’s family and friends.

So, who has the right to arrange the funeral?

Legally, a body cannot be owned, gifted, or bequeathed by the deceased to a specific individual. Wishes expressed in a Will or during the deceased’s lifetime are not legally binding on their personal representatives.

Additionally, the right to arrange the funeral may not necessarily fall on the deceased’s next of kin. The right to care for the body after a cause of death has been found goes to:

• The executor of the deceased’s estate, if there is a Will
• If there is no Will, the person who has priority on intestacy. This would be, in order of priority:
  • The surviving spouse or civil partner.
  • The children, or the children of any deceased child who died before the deceased.
  • The parents.
  • Siblings, or the children of any deceased sibling who died before the deceased.
  • Half-siblings or the children of any deceased half-sibling who died before the deceased
  • Remoter relations such as grandparents, aunts and uncles.

If there are no close relatives or anyone willing to accept responsibility, the local authority will take control and arrange the proper disposal of the deceased’s body.

If there is a dispute as to how the funeral should be managed, including whether it should be a burial or cremation, where and when the funeral takes place, and who is able to attend, usually the Executor or person with priority on intestacy will have the final say.

Often the deceased will have left instructions for their own funeral. Although these wishes are not legally binding on anyone, the person with the right to manage the funeral will frequently choose to follow those wishes out of a sense of duty, love or moral obligation to ensure the deceased’s wishes are carried out and to reduce tension between family members. Where family members disagree on funeral arrangements, giving effect to the deceased’s wishes can often be the most agreeable option to everyone.

What if the family cannot agree?

Occasionally, the deceased will not have left an indication of their wishes, or for other reasons the family will be unable to reach a consensus on funeral arrangements for a number of reasons.

This may include circumstances where there is a dispute as to the validity of the Will, and therefore as to who the executor will be.

If parties are unable to resolve the matter between themselves, it is sensible for parties to instruct solicitors who can help advise. It may be that the matter can be resolved through correspondence or a form of alternative dispute resolution such as mediation.

If negotiations fail, it is ultimately open to the parties involved to make an application to the Court to settle a dispute, however, this action is costly and is likely to cause serious damage to family relationships.

How would the court reach a decision?

If a court application is required, the court would take a number of factors into consideration. These would include:

• The deceased’s wishes
• The wishes of family and friends
• The place the deceased was most connected to
• The practicalities of each party’s proposed funeral arrangements, for example, cost and the location of the body.

The court’s priority will be to ensure the body is disposed of with proper respect and dignity and within a timely manner.

The court is able to direct who should have control of the body and, where there is a genuine dispute, can prevent disposal of the body until the dispute has been resolved (although time would still be of the essence).

If the body is to be cremated, parties should also consider how the ashes will be distributed after the funeral.

Before Court action is considered, we would strongly recommend that families consider negotiation and mediation to settle a dispute without going to court. In our experience, often conversations with the support of legal advice can help families discuss matters and resolve or narrow the issues in dispute, enabling them to reach an agreement which works for all parties.

If you have any concerns about the funeral of a loved one, please contact Hannah McElroy or another member of Michelmores’ Contentious Probate team.