Heidi Oldfield looks at the emotionally charged subject of burial and funeral disputes
Burial disputes and funeral disputes arise when agreement cannot be reached on what should happen to a person’s body after they die, such as where, when, and how it is buried.
Many people specify their funeral and burial wishes before they pass away, and some formally set these out in their will. However, these written wishes are not legally binding.
When burial disputes cannot be resolved informally between those involved then our solicitors can assist in finding a solution. In most cases we are able to negotiate an agreement, or reach a settlement at mediation, but, if necessary, these disputes can be taken to court where a judge will make a ruling.
Common causes of burial disputes
Disputes over the location of burial are particularly common. The courts tend to take a practical approach, wishing to ensure that the body is disposed of without unreasonable delay and with proper respect and decency.
Another cause of dispute is when there are competing claims over who has the right to arrange the burial. Generally, it is the responsibility of the person who has the authority to administer the deceased’s estate to make decisions regarding what to do with the body. It is often assumed that this will always be the next of kin. However, this is incorrect. Where there is a will, it is the executors who have legal authority to make such decisions. If there is no will, then the rules of intestacy will determine who the personal representatives shall be. The order of priority under the rule of intestacy is:
- A surviving spouse or civil partner
- Any children
- The parents
- Any siblings
- The grandparents
- Any aunts/uncles
If more than one person is eligible to act, there is no priority between them, and they are all entitled to act as personal representative.
Disputes can also occur after burial has taken place, particularly regarding disinterment. In one high-profile case a mother sought to disinter her child’s remains for cremation and to keep the ashes at home. The court allowed the disinterment to go ahead, considering the exceptional circumstances, including the mother’s grief and stress at the time of burial. However, the court will not always permit disinterment and may favour maintaining the status quo.
The timing of burial can also lead to disputes, especially when religious requirements conflict with legal or procedural obligations.
Cremation is another aspect that can become contentious. Section 30 of The Cremation (England and Wales) Regulations 2008 governs the disposal of ashes after a cremation. It states that the cremation authority must dispose of the ashes in accordance with the instructions of the person who applied for the cremation. Where no instructions are provided or the ashes are not collected then the cremation authority should arrange for the ashes to be ‘decently interred in a burial ground or in part of a crematorium reserved for the burial of ashes, or scattered there’.
In exceptional circumstances the cremation authority may at their discretion release the ashes to someone other than the applicant or the applicant’s nominee.
These examples illustrate the diverse contexts in which burial disputes can arise, often requiring courts to balance legal, cultural, and emotional considerations.
How we can help you with a burial dispute
Our team is experienced in resolving burial disputes and we can assist you by giving you advice on the challenges that may arise when deciding on the most appropriate funeral/burial arrangements for a loved one. We can in particular:
- Provide you with guidance on the steps to be taken in the event you are involved in a disagreement regarding the funeral or burial arrangements.
- Attempt to resolve the dispute out of court, through negotiation or formal mediation.
- Seek a court order allowing specific individuals to decide on the funeral and burial plans.
