Tue | Sep 24, 2019

Laws of Eve | Who owns a dead body?

Published:Monday | June 10, 2019 | 12:15 AM

Within the past week, the demands of ardent supporters of former Prime Minister Edward Seaga to have his coffin remain open as his body lies in state have made news headlines. The fact that those wishes conflict with the wishes of the family of the late prime minister led one of my colleagues to suggest that I write this article.

The fact is that it is (regrettably) not unusual for debates to ensue among family members as to whether a loved one’s body is to be cremated or buried. Often, the deciding factor is some clear indication from the deceased as to his or her wishes; and those wishes may be set out formally in a last will and testament, informally scribbled on a note or recounted by a trusted friend. Eventually, a choice is made and the hope is that anyone who is offended will soon recover and move on.

What is true is that an enquiry should be made before the step is taken, because it would be sad if a loved one’s body is cremated before it is discovered that he or she wished to be buried!

Rather than relying on practical rules, debates or arm wrestling, there are actually some cases that may provide guidance. For example, one of the first questions that needs to be answered after someone dies is, “Who has to take custody of the body?” In the 19th century English case of Williams v Williams [1882] 20 ChD 659, the court ruled that, “An executor having lawful possession of a corpse may have a duty to arrange its burial. There is no property in a corpse, and a person cannot effectively dispose of it in his will. Any directions given by the deceased with regard to the disposal of his body are not enforceable as a matter of law.”

The facts of the case are interesting. The deceased’s mistress, Miss Williams, was named in his will as the person to receive his body and cremate it, with directions to place the ashes in a special vase and bury it. Instead of following the deceased’s wishes, the executor, along with the deceased’s widow and children, buried the body. Miss Williams dug up the body and sent it to Milan for cremation (because cremation was then unlawful in England), and claimed expenses from the executor. The claim failed, because it was held that the executor had authority over the deceased’s body, not (Miss Williams) the person who was the intended beneficiary of his body under his will.

Merely Wishes

In short, a testator’s directions in his will regarding burial or cremation are merely wishes. Although they may guide an executor of the testator’s family, those directions are unenforceable and do not bind the executor. Instead, the executor, who steps into the testator’s shoes after he passes away, has the right and responsibility to arrange for the disposal of the testator’s body.

When a person dies intestate (without leaving behind a will), there is no person who can automatically step into the deceased’s shoes. In that case, it is the relative who ranks highest in priority to make an application for a grant of representation to administer the deceased person’s estate who will have the responsibility to take possession of the body and dispose of it. That hierarchy starts with a widow or widower, then children, parents, brothers, and sisters, and so on.

Where the deceased person has no surviving relatives, the person who stands to benefit from his or her estate or has charge of the body has the obligation to dispose of the body. In the case of University Hospital Lewisham NHS Trust v Hamuth and Others[2006] All ER 145, the court ordered the hospital where the deceased had died to arrange the funeral, as a dispute over who had the right to take the grant of administration of his estate was not resolved within a reasonable time.

In the end, there is no fool-proof way to avoid disputes among surviving relatives. However, in the same way that the first step in estate planning is to ensure that you have a valid will that captures all of your wishes, the first step in ensuring that your wish to be buried or cremated is followed is to appoint a trusted person to be the executor of your estate. The second step is to ensure that your executor knows what your wishes are, so that there is no mystery as to whether you wish to be buried or cremated.

To answer the question posed at the start, no one owns a dead body. However, the person with responsibility to dispose of the body has the authority to decide whether that body is buried or cremated, regardless of what the deceased persons wishes might be.

n Sherry Ann McGregor is a partner, mediator and arbitrator in firm of Nunes Scholefield DeLeon & Co. Please send questions and comments to lawsofeve@gmail.com or lifestyles@gleanerjm.com.