The death of a loved one is always going to be a traumatic event to deal with. Those without prior experience are often shocked by the amount of bureaucracy which is involved in issues such as handling probate, dealing with a Will, or simply arranging a funeral, with the question of the burial or cremation perhaps being the most divisive. The issue of when, where, how or by whom the body will be disposed of can be contentious, especially if the deceased did not let their preferences be known.
A recent case (September 2023) brought to light the problems that can occur when one person tries to control funeral plans. It also served as a warning to anyone living with another person about the limitations of influence and involvement that such a relationship may have when one partner passes away (especially in comparison to a marriage or civil partnership).
The case in question involved the deceased, Peter Otitoju who had died aged 67, his partner Benedicta Onwordi and his daughter, Adekemi Otitoju. It was the daughter, Adekemi, who launched a legal action after learning that Mr Otitoju’s partner had made funeral arrangements without her knowledge.
The legal action took the form of an application for the claimant to be entitled to possession of the deceased’s body and to make arrangements for its disposal. At the same time, the claimant applied for an interim injunction to prevent the defendant (Ms Onwordi) taking possession of the body herself or making arrangements for its disposal.
In her witness statement, Ms Otitoju stated that the defendant had claimed to be entitled to bury the deceased, and that the defendant did not live with the deceased but was his girlfriend and had moved into his house after his death. She also stated that the deceased had died without making a will (i.e. had died intestate) and that the defendant had ‘hurriedly arranged the burial to take place on 8th September 2023’ (although this date was actually one month after the death).
However, a counter claim revealed there was in fact a Will made by Mr Otitoju shortly before his death, which named Ms Onwordi’s daughter as an executor. Its validity was disputed based on the grounds that it was signed using a fingerprint, rather than Mr Otitoju’s written signature, and that it was witnessed by a nurse who cared for him, despite there being a perceived hospital policy prohibiting its staff undertaking such responsibilities.
The judge in the case, Mr Justice Roth, while describing the application as ‘somewhat unusual’, ruled that the Will was regular on the face of it, appearing to have been properly executed in accordance with section 9 of the Wills Act 1837. Accordingly, the presumption of formal validity applied, meaning that as executor, Ms Onwordi’s daughter was able to take possession of the body and arrange for its disposal.
Even though Ms Otitoju and her siblings preferred cremation, they did not object in principal to a burial, which was Ms Onwordi’s inclination. Additionally, Ms Onwordi acknowledged via her legal representation that she agreed that the deceased’s children as well as other family members and friends ought to be permitted to attend the funeral.
What lessons should be leant from this case?
What this illustrates above anything else is that making decisions regarding funeral arrangements is the responsibility of either the executors named in any Will which the deceased made, or the person entitled to receive a ‘Grant of Letters of Administration’ in a case in which the deceased died intestate.
In the latter case, where no Will was made, the order of priority runs through spouses, civil partners and biological relatives. It does not, crucially, include any unmarried partner who has not been appointed as executor even if – as may often be the case – they feel that they most fully understand the wishes of the deceased.
Complications
The rise in blended families is just one of the factors that might make funeral disputes more likely to arise, with children from different stages of the life of the deceased having different opinions on what should take place as far as the funeral is concerned. The kinds of issues which may arise when parties disagree over funeral arrangements include the following:
- Whether the body will be buried or cremated
- If burial is the chosen option, the location at which the burial will take place
- The date upon which the funeral will take place, which is probably more likely to be disputed if close family member wish to travel from overseas to attend
- Cases in which some members of the family have not informed other family members or friends of the funeral arrangements
- Who may attend the funeral
When disputes arise, the stress and upset caused is likely to be heightened by the emotional impact of the grieving process in general. For that reason it makes sense to try and avoid any dispute escalating by having a firm understanding of the law in this area.
The law in general states that there is ‘no property in a corpse’, a phrase which means that a body cannot be gifted or disposed of as part of a Will, and cannot be bought or sold, criminally damaged or stolen.
It can also not be taken as security by creditors pursuing debts left by the deceased. All of this may sound slightly like stating the obvious (i.e. a corpse not being bought or sold) but what they add up to is that a body cannot be regarded as ‘property’.
This means that, since any Will written by the deceased is intended to deal with the disposal of property, the wishes of the deceased, as stated in their Will, are not legally binding. These wishes may well be taken into account if a dispute arises and the parties attempt to come to an agreement or the court has to decide, but they still do not carry any decisive legal weight.
Priority
The legal order of priority for possession of a body is as follows:
- A hospital has the right to retain possession of a body if it is infectious.
- The coroner then takes temporary possession of the body, so that the cause of death can be determined. After an inspection, the coroner will release the body.
- If a will has been made, then the next party entitled to possession of the body is the executor named in that Will.
- In a case in which there is no Will, then the order of priority runs through surviving spouse or civil partner, on to children, parents, brothers or sisters.
- If no close relatives can be found, and nobody else is willing to take possession of the body, the local authority in which the body was found will take possession.
In the majority of cases, therefore, the executor of the Will has the final say on any funeral arrangements, and if there is no Will it will be a surviving spouse, civil partner or children.
As stated, the wishes of the deceased, as stated in any Will, are not legally binding. In most cases, however, the executor will follow any instructions left (where practicable and affordable) and will involve other family members in the arrangements.
what to do When there is a will dispute
If, as in the case cited in this article, a dispute does arise and it cannot be settled through negotiation or mediation, then the court will be asked to make a ruling based on the following factors:
- The wishes of the deceased
- The wishes and reasonable requirements of the family and friends who have been left behind to grieve
- The place with which the deceased was most closely associated
- Ensuring that the body is disposed of with respect and without delay
In the majority of cases, it is the last of these factors – respect and delay – which is treated as the ‘overriding factor’, having the most bearing on the decision of the court.
Another case which illustrates how disputes can arise and the manner in which the courts settle them, is that of Jakimaviciute v HM Coroner for Westminster and Stanevience [2019]. In this case, the two daughters of the deceased were in dispute over whether she should be buried in the UK, where she died, or Lithuania, where she originated.
The judge in the case ruled that the younger daughter was not on good terms with the deceased at the time of her death, and also that there was significant evidence in support of the claim that the deceased wished to be buried in Lithuania. In light of these findings, the body was released to Lithuania to be buried.
If you require support navigating a dispute, or even creating a Will, please do not hesitate to contact us for an impartial, confidential consultation. There is a need in these cases to act swiftly since once the body has been disposed of whether by burial or cremation, or has been taken abroad, the court is very unlikely to intervene. Be warned however that taking such action is not cheap and you can end up with a costs order against you if the court decides your application was without merit. Compromise is often required, which can be unpalatable.
