Ashes to Ashes - can a deceased's beneficiaries claim any rights over the body?

There can be no property in a corpse.

This is a three-hundred-year-old legal precedent founded on core principles of humanity and holds fast today. No one can own a deceased’s body. Therefore, the deceased's body cannot form part of their estate, and the estate's beneficiaries cannot claim any rights over the body.

Over the course of history, man has attempted to rule man, impose his will on others, enslave, burn heretics and witches at the stake and treat women and children as chattels. So it’s nothing new that a man should try to claim another man’s body – even if it is in the form of his ashes.

With the changing attitudes and, perhaps more importantly, a move towards a more secular society, views and attitudes towards the human body have changed. Until the mid-nineteenth century, burial was the prevailing method – the burning of human corpses was seen as pagan and unnatural. Now, we see a huge variety of funeral styles and different methods of burial, and of course, cremation is now a very well-used method.

Williams v Williams (1882)

The general rule with respect to dead bodies comes from the old and often quoted case of Williams v Williams, heard in 1882 - where the judge stated that there could be no property in a body.

The subject of body parts as property has entered the medical-legal world on numerous occasions and features every so often when obscure and interesting points of law arise surrounding the subject.

In 1882, when Queen Victoria was on the throne, England was predominately a Christian God-fearing nation, and the body was sacred. At the time Lord Justice Kay handed down his judgement in Williams, the body was seen as beyond the confines of the legal system, something more holy.

But what happens when disputes arise over the ashes of the deceased?

Although there is no right of ownership, there is a right of possession as so required for the purpose of the disposal of the remains. And this right generally lies with the persons responsible for arranging the funeral either under the Will or by family members in priority order. If a dispute arises, then it is for the courts to decide.

While not legally binding, it is common practice to include directions as to funeral and burial wishes in your Will. To help avoid these unsavoury situations and family conflicts, perhaps it is good practice to include some directions in your Will about such matters.

Funeral instructions should be legal, practical and not contrary to public policy. The decision on Oldham Metropolitan Borough Council v Mankin shows how the English courts are willing to intervene directly. In that case, the judge ruled that the funeral of Moors murderer, Ian Brady, should occur with no music and no ceremony. The serial killer had requested that satanic music was played at his cremation.

Using Margaret Mitchell’s words from ‘Gone with the Wind’ (no pun intended) “Death, taxes and childbirth! There’s never any convenient time for any of them.”

For advice on this subject, get in touch with Winter Addis on 01768 347 084 or email [email protected]