21st February, 2020
Discussing Funeral Arrangements
When a loved one dies, thoughts often turn quickly to the funeral arrangements.
Planning the funeral is often the most emotive aspect of administering an estate, it will typically be one of the first matters to be dealt after the loss of someone close and those involved can often feel a strong sense of responsibility to arrange a funeral which is in line with the deceased’s wishes, often with little indication of what they actually were.
Family and close friends will often come together to support each other with the arrangements , however, difficulties often arise when there is a disagreement over how the deceased should be laid to rest.
A recent example of such a disagreement is demonstrated by the case of Lina Jakimaviciute V (1) HM Coroner for Westminster (2) Rasa Stanevicience [2019] which involved two sisters who disagreed over where their deceased mother’s remains were to be buried. The deceased was originally from Lithuania and had moved to the UK in 1995 and the disagreement centred on whether her remains were to be buried in the UK or Lithuania.
The legal starting point is that no person can own a deceased body. If a body is infectious or the deceased has died of a notifiable disease then the hospital is entitled to temporary custody of the body. The Coroner is also entitled to temporary custody of a body where a death has been referred to them for investigation so that a cause of death can be determined.
If the deceased left a Will, the named Executors are entitled to take custody of the body only in order to arrange for the burial or cremation. This rule will also apply to the Personal Representative where the deceased does not leave a Will.
In the majority of cases, the deceased will have appointed close family members who will go ahead and plan a funeral. In cases where a professional Executor is appointed such as a solicitor, the professional will usually revert to the family to confirm the deceased’s wishes.
Many people choose to include funeral wishes in their Wills, by indicating a wish for cremation or burial, or by including detail such as hymns or a chosen epitaph. Such expressions of wishes, whilst helpful to Executors in considering what a deceased person would have wanted, are not legally binding and can be departed from. Furthermore, Executors may not read the Will until after the funeral, and may therefore not see the wishes set out.
In the recent case above, it was held that there was insufficient evidence to support the contention that the deceased’s body should not be released to the Executor of her estate as she was able to provide evidence to support the position that the deceased wanted her remains to buried in Lithuania.
Where there is a conflict over funeral arrangements the court will have regard to the following factors, amongst others:
- The wishes of the deceased
- The wishes of family and friends
- The place the deceased was most closely connected with
- Practicalities
Whilst it is not possible to make your funeral wishes legally binding in your lifetime, it is important to carefully consider who you have appointed as Executors in your Will and the practicalities of who will be making your funeral arrangements. If you have strong views, you should make sure that you share them with those close to you.
If you do not feel comfortable discussing your wishes, but you have made a Will which includes funeral arrangements, or if you plan to do so, you should ensure that your Executors are aware of this so that they can ensure that your Will is looked at before funeral arrangements are put in place.
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Rhiannon EdwardsWills, Trusts and Tax Solicitor |
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