A corpse: who will have the right to decide after your death?
The fraught difficulty of who has the right to choose how the corpse is to be disposed of; where it is to be buried and/or whether it should be cremated and then who owns the ashes only rarely becomes an issue for the Courts to decide because either the family are happy to agree, or the deceased left a Will and made directions for his Executors to carry out and the family are content with it.
Who owns the corpse?
There is no property in a corpse and as a consequence any direction in a will as to the disposal of the corpse is not binding. A corpse is incapable of being the subject of property transactions or offences; for example, it cannot be bought or sold, stolen or criminally damaged, or seized by the deceased’s creditors as security for his debts.
Methods of disposal
Disposal other than by burial or cremation is not forbidden e.g. mummification, cryonics, plastination.
Traditional burial grounds such as the municipal cemetery or churchyard are where the burial plots are marked by a headstone and the ground is maintained. The Natural Death Centre records that hundreds of people are now buried every month in cemeteries where headstones are replaced by native trees or discreet little sculptures to mark out a grave. An engraving in the stone in monochrome of a portrait of a young adult has been permitted but a ceramic plaque is considered going too far.
Many people appear to be reacting against the commercialisation of death and Christian and/or secular requirements imposed by traditional burial grounds. Urban cemeteries are running out of space and fears are also emerging about the pollution and global warming effects caused by cremation, used in approximately 79% of the 630,000 funerals held in Britain each year.
Thousands of burials on dedicated private land with biodegradable card or wicker coffins, and trees instead of headstones are taking place as “green” funerals. Green burials are also providing a new source of income for Britain’s hard-pressed farmers and are, says supporters, a romantic and practical way to rebuild the country’s native woodlands. If the bishop is prepared to consecrate such a burial ground the obligations that he or she is likely to require from the owner will be more limited than a traditional burial ground. However, it remains important that some means be found of marking off consecrated parts of the burial ground and the bishop and local authority will wish to ensure that such scheme will be observed now and by successors in title.
One of the risks on green burials is that the lack of certainty on duration of the licence to use the land as burial ground. Prohibitions on subsequent building, enforcement actions often for environmental reasons (i.e. pollution of water table) and other planning issues arise frequently in relation to such establishment. Exhumation may be required.
A person can elect to be buried on any land they own provided that all health and safety and sanitation laws are complied with as a corpse is considered clinical waste. Rough guidelines are:
• At least 250m away from any well, borehole or spring that supplies water for human or dairy farming consumption.
• At least 30m away from any spring or watercourse.
• At least 10m away from any field drain.
• Have at least 1m of sub soil below corpse and 1m of soil above.
• Be at least 2m above sea level and ensure that when 2m down there is no standing water in the hole.
The constraints on memorialisation can be avoided by this choice as there is no obligation to use a coffin or hold a service. Public access can be avoided but it is unlikely to be a practical possibility for many in our society where moving-house is common and development ripe. Planning permission is not required for 1 or 2 burials, but larger numbers would require planning permission or at least certificate of lawfulness from the Local Authority. A certificate for any burial is required from the Registrar or births and deaths or Coroner. An exact plan of where and who and when the burial occurred is required.
Burial at sea, in UK waters must be licensed. Currently only 3 sites are permitted
• off the Needles IOW,
• between Hastings and Newhaven and
• off Tynemouth, North Tyneside.
No part of the coffin or chattels on the corpse can contain plastic, lead, copper or zinc. The body must not be infectious nor embalmed. DEFRA actively discourages burial at sea including interment of ashes and recommend cremation followed by scattering of ashes at sea for which no license is required.
Where can I cremate?
Cremation can be carried out in a building that satisfies the definition of a crematorium, provided it does not amount to a public nuisance. The definition was extended to permit an open-air funeral pyre within a walled enclosure. Great news for certain faiths.
Duty to dispose of the corpse
As a matter of public policy for the safety of the public health someone needs to be responsible for arranging a decent burial. Who is responsible for the burial is really part of the bigger question. The law is currently:
1. The executor has the primary duty to dispose of the body and has a right to possession of the corpse for this purpose. The executor may determine the mode and place of burial even where other family members object. This right extends to the deceased’s ashes, to enable the executors to dispose of the deceased’s remains properly after cremation. This also extends to the choice of, and inscription on, the headstone. Unless the executors’ decisions are capricious, unreasonable or made dishonestly they are unlikely to be interfered with; strong grounds would be required to interfere with the exercise of executors’ discretion.
2. In the absence of a will and executor, the duty would fall on the administrator under the laws of intestacy.
3. Failing which the duty would fall upon the either local authority, coroner (their right to investigate and inquire into a death trumps all) or hospital where the deceased died. This duty extends to the householder under whose roof a person has died, in circumstances where the deceased is a poor person and no other arrangements can be made.
4. The person lawfully in possession of the body will normally have the power to make arrangements for disposal where there is a bona fide dispute as to the identity of the personal representatives.
5. The parents of a child are responsible for the disposal of their child’s body, provided they have sufficient means.
6. If a child in the care of the local authority dies whilst in care, the right or duty to bury the child reverts to the child’s parents unless the parents cannot be found or are unwilling to take responsibility for the body. The duty to arrange the child’s burial then reverts to the local authority.
Are the Deceased’s own wishes final?
The Deceased’s wishes, whether expressed or not, ought to be taken into account in accordance with Article 8 – the right to private and family life. But how does this work if there is no property in a corpse? How, then, can a corpse have human rights?
In a dispute between cohabitee and estranged wife, Judgement concluded that in disposing of the body the executor is entitled to have regard to the expressions made by the deceased but is not bound by them,
(in Buchanan v Milton  FLR 844 at 845H).
Further cases decided “There is no right of ownership in a dead body. However, there is a duty at common law to arrange for its proper disposal. This duty falls primarily upon the personal representatives of the deceased. An executor appointed by will is entitled to obtain possession of the body for that purpose even before the Grant of probate. Where there is no executor, that same duty falls upon the administrators of the estate. (There may arise other considerations but too long to include here).
Human rights are not retained by a corpse although the following may be relevant for next of kin, relatives and near relatives:
1. Right to religion (article 9)
2. Right to private and family life which should not be interfered with by a public authority.
Division of ashes is not usually the answer: Refusal to grant an order dividing the ashes after they had been interned have been given for various reasons.
In resolving disputes between those equally entitled to dispose of the deceased’s remains the court adopts a practical approach. It is accepted that it is often difficult to ‘weigh the competing claims and arrive at what one would truly call a legal judgment. Factors considered by the courts are the reasonableness of the proposed arrangements, the length of time which has elapsed since the disposal of the deceased’s remains, the wishes of those entitled, and the practical need for the disposal of the body without undue delay.
Procedure for disputes:
Cases to determine the issue of who is to bury (or cremate) the deceased have to consider:
1. the deceased’s wishes;
2. the reasonable requirements and wishes of the family who are left to grieve;
3. the location with which the deceased was most closely connected;
4. the most important consideration is that the body be disposed of with all proper respect and decency and if possible without further delay
It has been concluded:
“…the executor must have a discretion as to the mode and place for the disposal of the corpse of the deceased and that on ordinary principles the court will not interfere with the exercise of that discretion unless it is exercised in a way which shows that he has not properly weighed the factors which ought to have been taken into account in that it is wholly unreasonable.”
Modern methods of refrigeration may make court challenges to the executor’s decisions possible, but they are certainly unseemly. They delay the proper disposal of the body and the normal processes of grieving, while bringing further grief in themselves.
Choose your executor carefully and arrange a funeral plan so that everyone knows for certain what your wishes for the disposal of your body are.
For further guidance contact us here or call 079 888 30691.