Most people when making their will include a statement of their wishes as to what they would like to be done with their ‘mortal remains’. They might say that they wish to be buried, cremated, or even sometimes buried at sea or to have their ashes scattered at a favourite place. They often think that such a wish is going to be binding on those dealing with their funeral and administering their affairs but this is not the case. The law as it stands does not make what is in effect only a statement of wishes legally binding.
The legal position is that your executor is entitled to make whatever arrangements he or she sees fit for dealing with your remains. The decision as to your final resting place is that of the executor you appoint in your will and not of family and friends, and very often not even of you. The executor has the right to override all other wishes.
It is therefore most important that you appoint an executor who you trust to carry out your final wish – especially if it is strongly held. Equally important is making sure that everybody is aware of and agrees with your wishes. What can be most upsetting for friends and family left behind is arguments and bad feeling from disputes over your final resting place.
A guide to the grounds on which a will may be contested.
Sometimes people will not make a will and there will therefore not be executors with the responsibility to decide what is to happen to your remains. When this happens, the person or organisation on whose property you die is legally responsible for dealing with the disposal of your remains. Very often this will be a hospital of care home. The relevant authority will almost certainly allow your family to make all the arrangements for your funeral and problems will only arise if there is a dispute.
A dispute is only likely to arise if there are arguments within your family or some question over the validity of your will and therefore whether you have a valid executor responsible for making the decision. In such a case matters could be referred to the court for a judge to decide, and in a recent case the court ruled that the local health authority had the right to make decisions on the disposal of the body.
This is a situation, however, which can easily be avoided by making a valid will appointing executors whom you trust to carry out your wishes. You should also discuss these wishes with your family and make sure that they are happy and agree with what you want to happen to you.
