Sheila Hamilton-MacDonald, Senior Lecturer at NLS https://www.ntu.ac.uk/staff-profiles/law/sheila-hamilton-macdonald
American car: Photo by Pablo Lancaster Jones on Unsplash
As recently as 25 years ago, funeral conventions in the UK remained relatively rigid: for the bereaved family, the only real choice to be made was between the graveyard and the crematorium. Since then, however, choice in funeral arrangements has entered the UK in dramatic fashion. The family left behind increasingly wants a ceremony which will fully reflect the life and interests of the deceased – or, in other words, to have meaning for both the dead and the living -- and which will be a celebration of the deceased’s life rather than a sombre affair. Colourful coffins, unconventional hearses, and unusual final resting places are now much more common than they were even a quarter of a century ago.
But this increased emphasis on the funeral reflecting the character and the wishes of the deceased can lead to disputes which are not only intractable, but deeply upsetting for all of the family members involved. There has been a significant increase in the number of these disputes reaching court in recent years, exemplified in the recent case of Patel v Patel.
In Patel, the deceased was over 90 years old when he died in December 2024. He was a practising Hindu with a strong faith, who lived his early life in Gujarat but who had spent the last 70 years of his life in the UK. He had appointed his surviving son and daughter (E1 and E2) as executors under his will but had left no directions in his will about any funeral or burial arrangements.
Even if the deceased had left instructions for his funeral, however (whether in a will or otherwise), those directions are not binding on his Personal Representatives (PRs) (i.e. the persons legally entitled to administer the estate of the person who has died): Williams v Williams. This principle has been controversial in recent years, and the Law Commission is shortly to consult on it as part of its overall review of the law on burial and cremation.
The difference here between the executors was simple and stark: the Judge appositely described their views as “diametrically opposed”. E1, who was the claimant, wished his father’s remains to be cremated and his ashes scattered in the UK; E2, who was the first defendant, wished her father’s remains to be repatriated to India and to be buried there. Both executors gave evidence that their father had expressed the wish to them that his funeral should be held in this way. The Judge noted that both executors were clearly attempting to carry out their father’s wishes in good faith.
In reviewing the relevant law, the Judge noted the fundamental principle that under English law the remains of the deceased are not “property” and they do not fall into the estate; this has been well settled since at least 1881 in Williams v Williams. However, the personal representatives of the deceased, in this case the executors under the Will, have a right to possession of the body because they have a common law duty to deal with its disposal, that is, to make the necessary funeral arrangements (Dobson v North Tyneside Health Authority).
In this case, therefore, both E1 and E2 were equally entitled to possession of the body, and were both under a duty to effect a proper disposal. The problem was that they could not agree on what the proper disposal should be.
Disputes about funerary arrangements fall into two main classes: those in which the personal representatives are making arrangements with which others, usually family members or beneficiaries, do not agree; and those in which the personal representatives are unable to agree between themselves. As Patel has re-affirmed, the route to remedy is different in each case.
It is now clear law that where the dispute is between the personal representatives on the one hand, and dissatisfied family members on the other, the claim should be brought under section 116 of the Supreme Court Act 1981. This allows the Court, where there are “special circumstances”, to cut the knot by appointing an administrator to deal with the obsequial arrangements only. While it is possible to use section116 in a case whether the dispute is between two PRs who cannot agree, Patel has re-affirmed that it should not be used for this purpose.
Where the dispute falls into this second class, Patel affirms that the Court should consider its powers under its inherent jurisdiction rather than under section 116. However, whether the power is exercised under section 116 or under the inherent jurisdiction, it is becoming increasingly settled that the factors that the Court will consider are those set out in Hartshorne v Gardner.
Hartshorne sets out four factors that the Court has to consider when asked to decide on who should have conduct of the funeral arrangements. These are: the deceased's wishes; the reasonable requirements and wishes of the family who are left to grieve; the location with which the deceased was most closely connected; and finally, that “the most important consideration is that the body be disposed of with all proper respect and decency and if possible without further delay”.
This final point was described in Patel as the “overarching” consideration. While technological advances have now made it possible for the deceased’s remains to be stored for lengthy periods, the recently published cases emphasise that allowing this to happen while family disputes are ironed out is, to use a word rarely used in the 21st century, “unseemly”. As a result, the main drive of the Court will be to resolve the matter with as much pragmatism and as little further delay as possible.
Patel is a helpful and clear working through of these principles. Bearing the overarching consideration in mind, the Judge worked through the remaining three factors. He decided that neither of the executors had convinced him to a civil standard of proof what the deceased’s wishes were; he also noted that even if they had been clearly expressed, the executors were not bound to carry them out. He then looked at the views of the immediate and wider family. Only E2 wished for the deceased to be buried in India: all other family members apparently wished for a funeral and cremation in the UK.
In examining the location with which the deceased was most closely connected, the Judge took into account the deceased’s birthplace in Gujarat and his strong cultural ties to India. However, these were diminished by the fact that for the past 70 years, he had made his home in the UK and had had only loose connections with India. In addition, his remains could not be buried anywhere close to his natal town in Gujarat as there were no Hindu graveyards there; they would have to be buried many miles away in a place with which the deceased had no connection. “India”, as the Judge noted, “is a big country”.
No expert evidence was offered as to obsequial Hindu practice, but family members were able to give evidence that while cremation is the norm for Hindu funerals, burials are not in fact unknown or unheard of. It was therefore possible that a devout Hindu such as the deceased could express a wish for burial as opposed to cremation.
There were two practical points about the proposal to inter in India which the Judge also considered. Because complex arrangements would have to be made for the transport of the remains to India and subsequent burial, there would be further significant delay and increased costs in bringing matters to a close. Interment in India would also prevent some family members from attending the funeral because of expense, inconvenience, or poor health. Neither of these points were decisive, but they were part of the overall balance under Hartshorne.
It is clear from the judgment that as well as the “overarching principle” of timely and respectful obsequies, the Judge considered that the most weighty factors were that the deceased had, in fact, no connection at all to the proposed burial place in India, and also that all but one of the family members preferred a funeral and cremation in the UK. He added that “in a case like this the wishes of the wider family have a great weight. Their needs are the needs of the living. It is they who attend the funeral, and must grieve and remember. The funeral gives them both comfort and closure.”
In this comment, and in the way that the Hartshorne factors were balanced generally, Patel perfectly reflects the changed understanding in the UK of what – and who – funerals are for. They are to represent the life of the dead, celebrate it and do justice to it; but just as importantly, they are a rite of passage for those who remain, and they must be meaningful for them too. The increasing volume of litigation, of which Patel is a part, reflects that increasing search for meaning.
Further Reading:
Williams v Williams (1881) 20 Ch 659
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