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Are Funeral Wishes Legally Binding? Is the Current Law About to Change?

on Wednesday, 03 May 2023.

This is a difficult topic for discussion but the question of how we deal with the physical remains of those closest to us after they are gone can sometimes become a contentious issue.

Matters are not helped by the fact that the laws governing how we dispose of the bodies of our loved ones are undeniably out of date, with much of existing legislation dating back to the 19th Century. To investigate this position, the Law Commission for England and Wales has embarked upon a review of the current laws, with a view to grappling with two prominent issues:

    1. we cannot guarantee that our wishes as to the disposal of our remains are carried out, and
    2. the law does not take into account new alternative methods of disposal.

Can We Guarantee that Our Wishes Are Respected?

It is a long established legal principle that 'there is no property in a dead body', and as such, disposal of a body cannot be dictated by the terms of a Will. In plain English this means that the personal representatives of a deceased person's estate must have regard to the deceased's wishes regarding their burial, cremation or an alternative, they are not and cannot be bound by them.

Therefore, the only obligation on the part of personal representatives with regard to the method of disposal of the deceased's body is a moral one. The unfortunate side effect being that, where there is ambiguity in the deceased's wishes, or family members disagree on what should be done, disputes can arise. This can lead to additional stress and upset at an already distressing time, not to mention the additional costs that can arise if disputes escalate and lawyers have to be instructed to help find a resolution.

It is also important to note that whilst personal representatives are not bound by the wishes of the deceased as to how their body is disposed of, they are under a duty to arrange for the deceased's proper disposal.

Alternatives to Burial and Cremation

We often think of the choice as just being between burial and cremation. However, new methods are constantly being developed, many of which are already being used in other countries.

Whilst these new methods are not expressly forbidden, the existing laws are only concerned with burial and cremation, meaning that these other methods are completely unregulated. This acts as a disincentive to innovation and investment in alternatives, and may take away choices that people otherwise would have made.

 What Is Likely to Change?

The Law Commission's review will seek to "create a future-proof legal framework" that "enables safe and dignified new processes to be made available in England and Wales". It has the challenging task of striking a balance between providing greater certainty that a person's wishes regarding the disposal of their body are respected, whilst ensuring that public interest is not harmed by unachievable or inappropriate requests.

The fact that the Law Commission is undertaking this review demonstrates the complexity of the current laws, and the difficult nature of dealing with the disposal of a body. It is a topic which many of us are understandably hesitant to discuss openly, but under the current legal framework this can result in ambiguity for our loved ones who are left to make these important decisions after we have passed. It is hoped that the Law Commission's review will result in modernisation and the introduction of mechanisms which will help to reduce future conflicts and upset.

As you might imagine having specialised in this area of law for many years we have had to deal sensitively and pragmatically with families in conflict over funeral and burial wishes.

If you are unfortunately faced with this in your family, please contact Fiona Lawrence in our Private Client team on 0117 314 5389, or complete the form below.

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