Private Lives - Whose body is it anyway?

04 April 2016

A recent High Court case brought by a brother and sister concerning the ‘possession’ of their mother’s body highlighted the relevance of this issue.

A recent High Court case brought by a brother and sister concerning the ‘possession’ of their mother’s body highlighted the relevance of this issue. When Iris Freud died her daughter wanted her to be buried in a Church of England cemetery near her but her son, David Freud, wanted her to be buried in a traditional Jewish consecrated graveyard. Mr Justice Arnold who heard the case, which attracted huge publicity at the time, said he would need to call upon “the Judgement of Solomon” to decide the biblical dispute between the siblings.

Although not many cases reach the courts or receive the coverage that this case did, it highlighted the growing problem surrounding the disposal of bodies.

Many of us have a clear idea of how we want our remains to be dealt with after we die and many of us believe that our immediate family have the right to make those decisions. However, this is not always the case and as families and society become more complex then disputes are increasing amongst ‘survivors’.

The general legal principle is that a dead body is not ‘property’. One consequence of this is that even if we make very specific directions in our wills those wishes are not legally binding or enforceable.

There are some statutory exceptions to this if we have opted to donate our body or specific organs for medical research or transplant or indeed if a man consents to the posthumous use of his sperm. In these circumstances the wishes of the deceased are protected in law.

The real issue after death is who is entitled to ‘possession’ of the body for disposal and that will depend on the circumstances.

The law places a duty to dispose of a body firstly on their executors and if there is no will then upon the personal representatives. If there are no personal representatives then the person with the highest right to take out a grant of probate can take possession of the body. There is therefore a clear hierarchy as to who is to be responsible for the disposal of a body. However, if the deceased had no Will, had a complicated family background with perhaps multiple partners, then this can cause significant problems. Even if there are executors, as in the case of Iris Freud, those who have the right to ‘possession’ of the body or cremated remains can disagree.

Sometimes they will act unilaterally regardless of the wishes in the will, the other executors or other family members. This can cause very deep distress and permanent fractures in families.

If you do have strong preferences it is best to discuss them with your solicitor and to include your wishes in a letter which can be kept with your will. However, this is not fool proof because a will may not be looked at until a few days after your death, sometimes, after arrangements have already been made. It is much better to talk to family and friends and tell them what you want and in the absence of any strong wishes decide who you want to make those decisions when you have died.

If there is a dispute it can prevent burial for many months, as in the case of Iris Freud. If that happens it can cause enormous distress to the survivors and postpones the healing process of a funeral.

The content of this article is for general information only. For further information regarding this subject, please contact our team today. Law covered as at April 2016.