It is well known that the number of disputed wills and estates has been steadily on the rise. One aspect of dispute that you might not have expected is the question of what happens to a loved one’s body when they die. The Law Commission, as the body that reviews the law on behalf of the government, has announced in its 13th report on future projects that they may try to set out a modern framework for disposing of the dead. The thinking behind the project is to try and create a clear legal framework to enable the safe and dignified disposal of a person’s remains. It might also better help to respect someone’s wishes as to how their remains are disposed of.
One issue the Law Commission has highlighted is the fact that the current law does not accommodate new, more environmentally friendly methods of disposal. In addition, the current law is outdated, piecemeal and complex.
The current legal structure
Some of the rules that relate to a dead body include the following:
Ownership – This is often the first question that has to be considered when faced with the death of a loved one. The legal principle has long been established that there are no “property” or “ownership” rights to a dead body. This of course does not help a grieving relative establish who should have control or possession following someone’s death. What can currently happen is that the person who has a duty to bury a body also has the right to possess it. This may be a hospital where someone has died or the coroner. In a case reported in The Guardian newspaper on 15 January 2018, a Jewish burial service called for a judicial review and removal of a London coroner for allegedly causing “anguish” by delaying the release of a body. Under Jewish law, the dead should be buried as soon as possible and preferably on the day of death. Cases can become even more difficult if close family members cannot agree on what type of burial a loved one should be given. The recent case of the feuding brother, David Freud, and sister, Susanna Levrant, in 2015 resulted in both an expensive High Court case and the grim reality that while the siblings were fighting over possession of their mother’s body, she was decaying in a morgue.
Disposal – The law assumes that the person who assumes the right to take possession of a dead body recognises a duty to dispose of it. This duty usually falls on the executor or administrator of the deceased’s estate or the parents of a deceased child. It is actually an offence (provided you have the money) to fail to discharge this duty. If the responsible party does not have enough money or a person dies without kin, the duty to dispose of the body falls on the local authority.
There are other offences relating to dead bodies. It is unlawful to:
• Detain a body (say, until a debt is paid)
• Refuse to deliver a body to the executors for burial
• Conspire to prevent a lawful and decent burial
• Dispose of a body to prevent an inquest
• Sell a body for dissection
• Expose a body in a public place if doing so would shock public decency.
It is expected that the Law Commission may take between two to three years to report and make recommendations on a new framework for disposing of the dead. The proposal made in their 13th project report rightly points out that the current law causes “additional stress and emotional upset at an already distressing time in people’s lives and additional costs to the individual...”.
New rules could help provide certainty to the relatives and also aid executors in respecting the wishes of the deceased.