Most people are probably aware of the amount of administration, bureaucracy and paperwork that surrounds the death of someone close – a situation exacerbated if the deceased did not write a Will. But what might not be as well-known is the legal process for dealing with the remains of the deceased.
The out-dated and complex law that defines the process means if there is ever any issue around how a body should be disposed of, questions of burial over cremation or the location of a grave for example, can be very difficult to settle.
Some of the relevant laws date back to the 19th century and have resulted in such anomalies as there being no legal guarantee that an individual’s wishes regarding what will happen to their body when they die, will be respected. There is also little flexibility regarding any method beyond traditional burial or cremation.
Before explaining what the Law Commission is doing to try and review and modernise the law it’s worth considering examples of how disruptive and difficult the current provisions can be.
Anstey v Mundle
In the case of Anstey v Mundle (2016) the deceased had been born in Jamaica but lived in the UK since the sixties, last visiting Jamaica in 1998.
The deceased’s Will stated that he wished to be buried next to his mother, in Jamaica, and while one of his daughters and his niece supported this wish, his other two daughters claimed the Will was invalid, questioning the capacity of their father at the time it had been written.
Ultimately, the Court found the Will had been written by the deceased and he had capacity at the time. It also considered conversations the deceased had with a friend in which he expressed a wish to be buried in Jamaica, and the closeness of extended family members who agreed with his wish.
It was six weeks after his death that the Court reached its decision and Mr Justice Klein, delivering the judgment, emphasised just how upsetting such cases could be: “Every person deserves dignity in death and those who grieve a person’s passing can rightly be heard to say that their grief should not be prolonged more than is absolutely necessary…
“Having heard from the main protagonists and some of the deceased’s extended family, I am entirely satisfied that their strongly held views are genuinely held… I do not believe that the claim, on the one hand, or its opposition, on the other, was for any ulterior, underhand reason.”
The decision of the Law Commission to start a review of the law, with the aim of devising future-proof laws to govern the disposal of the dead, was doubtless prompted by cases such as that cited above, along with a desire to create certainty that would make such cases less likely.
As the law stands, a dead body cannot be ‘owned’ by anyone, and the person who is entitled to ‘possession’ of a dead body, also has a duty to dispose of that body, with the identity of this ‘person’ changing following a death, from hospital to Coroner’s office, family members and anyone else with an entitlement under the rules of intestacy.
Perhaps the most striking anomaly which the review will hope to deal with is the fact that, under the current law, the only part of a Will that is not legally binding is the section setting out ‘funeral wishes’.
The piecemeal nature of current law adds complexity to cases of this kind, with the majority of cases drawing on the judgement set out in the case of Buchanan v Milton (1999), which states the following:
“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 there has been a grant of Probate. Where there is no executor, that same duty falls upon the administrators of the estate, but they may not be able to obtain an injunction for delivery of the body before the grant of letters of administration.”
This judgment, in its relative complexity and the reference made to cases dating back as far as 1879, helps to illustrate the need for the law to be streamlined and modernised.
At the time of writing, the review is still in the scoping phase, before the terms of reference are agreed with the government, following which the full review will take place. Any changes will need to be borne in mind by those people whose Wills either don’t make reference to funeral wishes, or are insufficiently clear.
It is also worth stressing the point once again that writing a Will is an important step for everyone and drafting one with guidance from an experienced legal adviser makes the most sense if it is to be clear about what the writer wishes to happen to their body and their estate after death.
