Funeral Arrangements and Your Will10th July 2019

The house; the money; the belongings : most people would say that the purpose of a Will is to dispose of the deceased’s physical and financial assets. However, Wills can also be used to express a person’s wishes as to how their body should be disposed of after they die. These decisions are intensely personal to the deceased, as well as to those left behind, and what is right for one family will be wrong for another. Did the deceased want the coffin to travel in a horse-drawn carriage, or to be carried by mourners wearing his trademark Hawaiian shirts? Did she want to be buried in a family plot? Was she afraid of fire, and hated the idea of being cremated? Where do the mourners want to be able to visit and remember their loved one? A garden? A peaceful cemetery? A riverbank where ashes have been scattered?

It is always important to talk to your family about the provisions you are making in your Will, so that there are no surprises for anyone at a difficult time, and the question of the funeral arrangements is no different. Lawyers sometimes give less weight to these questions because they aren’t perceived as being “really legal”, but to the grieving family, the way the funeral is conducted can be most important of all. A good funeral, however sad, gives the family a chance to remember the deceased, to celebrate his or her life, and to start to come to terms with the fact of the death, and its finality. A funeral that is badly dealt with, hurried, or botched in some way; where people have not been invited, or have been missed out of the obituary; where some family relationships are perhaps perceived as having been given greater importance than others – these problems can cause lasting rifts in even the most functional of families.

So, what is the procedure if the deceased wasn’t clear about their wishes, or if the family can’t agree? The High Court has an inherent jurisdiction – meaning that the Court has the right to make the decision without the need for an Act of Parliament saying so – to decide questions about the disposal of remains. So, for example, in the 2016 case of Anstey v Mundie, the Court had to decide whether a deceased gentleman should be buried in the UK or in Jamaica. The judge said that the factors to be taken into account were that:

The body had to be disposed of with all respect and decency, and without further delay. The relevant factors in determining the place of the funeral were: the deceased’s wishes, the location that the deceased was most closely connected with, and the reasonable wishes and requirements of family and friends who were left.

In this particular case, the Court decided that it was right that the gentleman’s body should be returned to be buried next to his mother in Jamaica, as he had specified in his Will. But every case will be dealt with on its own facts. It must be preferable by far, if possible, for these issues to be decided without the expense and emotional trauma of a hearing in the High Court.

In 2017 the Law Commission, the body tasked with reforms to legislation, said that the law regarding the disposal of remains needs to be modernised. It said that the problem was that:

The law governing how we dispose of the bodies of our loved ones when they die is unfit for modern needs.

While we often think of the choice as being between burial and cremation, new methods of disposal are being developed which are completely unregulated here.

Further, the legislation governing more traditional methods of disposal is outdated, piecemeal and complex.

The law does not ensure that a person’s own wishes as to the disposal of their remains are carried out, leading to disputes where family members disagree. Disputes also arise as to entitlement to a person’s remains.

The Commission suggested the creation of a new “future-proof legal framework”, but despite this recommendation, work is yet to commence. In the meantime, the Courts continue to hear cases between warring family members.

What is the answer for the testator who wants to avoid family strife? As ever in the law, there is no one solution which will provide absolute certainty. It has to be a good idea, though, to talk to family in advance about what the plans are – who should be invited, what people are to wear, what it will cost. These conversations are difficult to initiate, but anything that reduces the possibility of family friction, at a time of grief, must be a good thing.

In summary, making a Will with details of your Funeral Wishes is most helpful for your Executors and family. Alternatively, you could make a Will which refers to a Letter of Wishes for funeral arrangements. This is a document which is separate from your Will, and you can personally amend this Letter of Wishes as much as you like over time, giving flexibility and peace of mind.

If you would like more information regarding making a Will, head to our Making a Will page or to speak to one of our expert solicitors, call us on 0191 500 6989. If you would prefer to email us, please use enquiry@emgsolicitors.com.