From time to time I am instructed when a dispute occurs between family members regarding the burial or cremation of their loved ones.
A recent case decided in the Chancery Division (Anstey v Mundle) has highlighted that on occasion such disputes can end up in court and serves as a timely reminder of the factors to be considered when such a sensitive dispute occurs.
Many people leave directions in their Will as to the disposal of their body. However, the individual’s Executor is entitled to have regard to the expressions made by the deceased, but is not bound by them.
In the recent case it was reinforced that 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 the family and friends who were left.
In this particular case the deceased had been born in Jamaica and came over to the UK in the 1960s. The deceased had left a Will which stated that he wished to be buried in Jamaica next to his mother. However, his daughter questioned whether, when he made his Will, her father had sufficient mental capacity and that he actually wished to be buried in England and that he had not visited nor wanted to visit Jamaica in recent years.
The Judge found that the Will, on the face of it, appeared to have been written by the deceased and it was presumed that he had capacity. As he had indicated his wishes in the Will, and those wishes were found to carry some weight, but were not binding on the Executor. Crucially, it seems, the deceased had discussed his wish to be buried in Jamaica with a friend. It could not be stated that the deceased had more ties in England than he did in Jamaica and therefore it was decided that it was proper for the deceased’s body to be released to be buried in Jamaica.
The legal position for over 150 years has been that a person’s body does not form part of their legal estate and cannot pass under their Will or under intestacy rules and, as a consequence, any direction in a Will or Codicil as to the disposal of the body is not strictly enforceable. However, as has been shown in this recent case, whilst a direction in a Will is not technically strictly enforceable, it is highly influential and, I would suggest, most likely to be followed by a Judge unless there are very unusual and specific circumstances that would indicate that following such wishes would not be appropriate.