Who has the right to deal with a person’s body after they have died?
It’s important to clarify in your Will HOW you want your remains to be processed after you die and WHO is responsible. But what happens if the Will doesn’t specify this?
According to case law, the Executor or Executors of a deceased Estate have the right to possession of the deceased’s body. However, this right is limited to fulfilling their duty to ensure a prompt and decent burial or cremation. Where there is no Executor or Executors, then the parents or spouse of the deceased (i.e. the next of kin) have a right to possession of the body but only for the purposes of ensuring a prompt and decent burial or cremation.
If the Executor or Executors arrange for cremation of your loved one then the disposal of your loved one’s ashes also rests with the Executor or Executors. It is important to note that under Regulation 34 of the Public Health (Disposal of Bodies) Regulation 2002 it is not possible to cremate the body of a person if that person has left a written directive that their body was not to be cremated. However, this will not apply as it appears that your loved one left no instructions on the disposal of their remains in their Will that could be considered a written directive that their body was not to be cremated.
If there is more than one Executor and they cannot agree on the handling of your loved one’s remains then it may be necessary to apply to the Court for the issue to be resolved.
To resolve the family dispute as quickly as possible you need to seek urgent legal advice on the handling of your loved ones’ remains. This advice needs to be sought as soon as possible as one of the duties of the Executor of a deceased Estate is to arrange for the prompt and decent burial or cremation of your loved one. If you do not act straight away it may be too late.