This headline caught my attention at the start of this year on a BBC News item. New York became the latest US state to allow composting of human remains. I suspect that the composting of human bodies phraseology used in the headline catches more attention than “natural organic reduction”, the terminology used by the Us firm, Recompose, offering the service.
Recompose also promote the process as an environmentally friendly alternative to burial or cremation. Savings on carbon are one focus.
Interestingly, this side of the pond in December 2022 the Law Commission of England and Wales announced a pre consultation stage on a project for review of “The law governing how we dispose of the bodies of our loved ones when they die”
Amongst other things the review is set to consider the legal status of a person’s wishes about what happens to their body following death as well as the rules governing who else has the right to make decisions about disposal of the deceased’s body.
Under current law, there are no guarantees that a person’s wishes for what happens to their body after they die are respected. The uncertainty can lead to disputes between family members over the arrangements for their loved one’s body.
Consider a scenario involving divorced or separated parents who have lost a child. The parents may live in different parts of the country, possibly with their respective new partners. If the child was an infant the intestacy rules apply and govern who is to benefit from an estate and the order of priority for application for a grant of letters of administration. The priority order aspect is of great importance for authority over funeral and burial arrangements.
While there is no right of ownership of a body, there is a legal duty to arrange for its proper disposal. If the deceased left a Will, the named executor is entitled to take possession of the deceased’s body and is responsible for disposing of the body. If there is no Will, it is the person who has priority on intestacy (the administrator).
The parents of a child would both rank equally in the order of priority to apply for the grant. With a divorced couple this could cause a deadlock and application to court might be necessary to resolve the dispute.
In Fessi v Whitmore (1999), the 12-year-old son of divorced parents died in a tragic accident just a few days after moving to a new home in Wales with his father, who had been primary carer since the divorce. The father wanted the son’s ashes to be scattered near his new home, so that he could tend to the grave, but the mother wanted them scattered in Nuneaton, where the family had lived before the divorce, and where the child’s grandparents’ ashes had been scattered.
Although the child had lived with his father that fact alone did not mean that the father’s choice of arrangements should prevail. The court ultimately concluded that the son’s ashes should be scattered at the Nuneaton Crematorium. (1) It was a place where all the family could have some focus (2) It was the place where the child’s paternal grandfather’s ashes had been scattered and therefore had a natural focus for the father to attend. (3)Taking everything into account, it seemed a place where all members of the family could come together to see a fitting memorial to the child’s life.
The 2016 case of Anstey v Mundle had an international element as the deceased was born in born in Jamaica, had subsequently relocated to England in the 1960’s where he later died. A dispute arose about where the deceased should be buried – in England or Jamaica. The deceased last visited Jamaica in 1998 but had made a Will stating a wish to be buried in Jamaica, next to his mother. The court found that the deceased had expressed a wish to be buried in Jamaica and that the party supporting a burial in Jamaica should be entitled to make arrangements for the burial.
Also in 2016 Re JS (Disposal of Body) the courts were called upon to make a determination regarding a 14-year-old girl with terminal cancer and her desire to be cryogenically frozen. The court ruled that the teenager’s mother, who supported the girl’s wish to be cryogenically preserved, should be the only person allowed to make decisions about the disposal of her body. Her estranged father had initially opposed her wishes.
More recently, another case involving dispute between parents as to funeral arrangements. Re E (A Child:Burial Arrangements) [2019] sadly involved the burial arrangements for an infant child murdered by the mother’s cohabitee partner. The mother and father disputed burial arrangements. The court ultimately determined the dispute in favour of the father after taking into consideration (1) the nature of the child’s death (2) the mother’s conviction, and (3) the practical implications of her imprisonment for acting as administrator.
When disputes arise it can be crucial to take specialist legal advice as soon as possible. If you would like advice on resolving burial and funeral disagreements please contact us on 0345 646 0406 or fill in our online enquiry form and a member of our Team will be in touch.