Law Regarding Who Has the Right to Deal with an Adult’s Body after Death

Info: 4485 words (18 pages) Essay
Published: 4th Dec 2020

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Introduction

The UK law, as laws in other countries, has been keen to address the issues that surround the rights of dealing with an adult’s body after death. These laws range from issues of corpse disposal to exhumation laws and regulations to cremation and to disputes that are posed either digitally or manually through court orders.

Overall, an adult’s body has to be treated with the utmost respect to humanity, guarded by the statutes and regulatory laws that are envisaged in the constitution. The dead ought to be respected at all costs regardless of the social status that they enjoyed in the society. Anybody dealing with a corpse, the rightful family of the corpse included, has to be privy of the statutes that govern the handling of the adult body. This research will highlight the plight of different cases that appertain to dealing with adult bodies after death and how the various jurisdictions were able to address this issue. It also includes the persons that are entitled by law to possess the body of the dead and control their burial. The case study of Elizabeth and Rose has been incorporated to explain further what the UK law offers with regard to the rights of the dead.

Research trail

This research was done mainly through the internet. Much of the content on the laws that deal with the person with the right to deal with the adult body of the dead was obtained through thorough research from the internet. The issues that are being researched are about the laws of the deceased in the UK. The dead have to be respected and their desires met as drafted in their wills. The trustees are mostly their spouses. If the spouses are not there, then the family of the deceased assumes the responsibility of trusteeship. Elizabeth and Rose are two individuals that are used as case studies to elaborate on whether the UK laws on the rights of handling the adult body of the dead is well enacted and accepted by the people. The realization is that there is an imbalance between what the state expects and what the people want for their loved ones, as evidenced by the spike in fines related to breach of laws that govern handling the dead bodies of adults. All these have been thoroughly researched, with references provided on the same.

This research aims at expounding on the laws that surround who has the right to deal with the body of an adult after they die. An adult human body, according to the UK law, is first and foremost, is under the trustee who in most cases, is usually the spouse if the deceased was married. The family of the deceased automatically assumes the trusteeship in cases whereby the dead person was not married or had no will in place before their death.

The logical conclusion of all this is that the law that guides the people in the UK as far as handling the dead bodies is concerned is straightforward and well explained. Detailing the issues of trusteeship and how the trusteeship can be passed on from one person to another explains how flexible the law is to cater to the needs of the people. Despite the spike in breach of these laws in the recent past, the UK constitution is well elaborated to cater to such issues in detail.

The advice that the clients would be given is that they should first acquaint themselves with the provisions of the law as far as dealing with dead adult bodies is concerned. Elizabeth and Rose were both against the idea of cremation after they die. That means they will need to have a will that stipulates what needs to be done when they die. Therefore, they must have valid wills that will be subjected to probate actions after they die to ascertain their tenability. The UK law clear states that the will is the primary document that guides any undertakings on the body of the deceased. The will indicates who the trustee is and also provide any further information on the same. After that, the process of execution will be relatively easy. By that, they can be sure that their wishes will be met.

The research process was conducted almost exclusively with the aid of the internet. Thorough research was done from internet websites, journals, and government legislation provisions on the internet to come up with a substantial document that explains how deceased bodies are handled. All these internet provisions were merged to produce these research work with all the ideas and points being properly referenced with their resources.

Research trail

Summary of legal issues

Elizabeth and Rose have been friends since they met at University many years ago. As they were chatting at one of their lunches they realised that they both had strong views on the way they wanted their funerals to be conducted after they had died. Each wanted to be buried, not cremated and they had each written a description of exactly what they wanted in their ceremonies.

Elizabeth lives with her partner, Henry. They are not married and Rose was widowed 5 years ago. Each has siblings, but no living parents and no children.

They discussed how they were getting anxious because they knew that their siblings would not want to follow their wishes, and instead would opt for the cheapest cremation package they could find. Elizabeth is hopeful that Henry would honour her wishes, but is not sure whether he would be allowed to take over.

Elizabeth and Rose agreed to do all they could to make sure each other’s wishes were carried out. What is the current law concerning who has the right to deal with an adult person’s body after they have died? What advice would you give to Elizabeth and to Rose so that their funeral wishes might be carried out? Do you think the correct balance is currently being struck in England, between the wishes of the deceased individual, those of his or her family, and the State when it comes to dealing with an adult’s body?

The conclusion

The advice / Applying the law to fact

Research methodology

All these internet provisions were merged to produce this research work with all the ideas and points being properly referenced with their resources.

Legal rights of the family and trustees

In the UK, the family of the deceased has the legal right to deal with the adult body after death occurs, especially in cases whereby the deceased had no will or had no other preferred entity to handle their bodies after they die[1]. If the dead happened to leave a will behind, then the family is obliged by law to stand guided by the will when handling the body of the deceased. The first step that the will is subjected to is a probing mandate that the court is entitled to under the law. Probate is a common practice, especially in the UK legal field[2]. Probate actions give the family legal rights to deal with the body of the deceased in whatever way stipulated in the will without any further action from the court. In Scotland before 1864, the law mandated only the transfer of moveable property stated in the will. The moveable property included money, household property and clothes that belonged to the deceased. Such laws were later amended and warranted the transfer of both moveable and heritable property that had to be passed on through testaments[3]. In cases where the deceased did not leave a will, then the trustee is mandated by law to begin the process of administration and dealing with the body. The trustee in most cases is usually a family member of the deceased. Whenever wills are subjected to probate actions, the courts typically update the family members of any changes that have been made in the will. The updated version is availed online approximately 14 days after the probate has been issued[4].

The UK constitution states that if the deceased person had a spouse, then the spouse is the primary entity that has the right to deal with the body after death. The human rights act of 1998[5] incorporates such statements into the UK constitution and emphasizes on the need to respect the dead and have a well laid out procedure of who is mandated to deal with the deceased body. Such laws have sanitized the health sector and the public fraternity at large when dealing with the bodies of the dead. Breaching of such laws has commonly attracted hefty penalties under the law[6]. For example, in 2017 alone, the UK witnessed an all-time high of fines that were imposed for breaches of such laws, which topped $3 million[7]. With the general data protection regulations (GDPR) being mandated to safeguard such data and provide caps to such fines in the country, these fines are expected to shoot even further to about triple that figure. Even the elite have been able to support such amendments. Theresa May, in 2011, famously agreed to the incorporation of the human rights act into the UK constitution in support of what the United Nations was doing as regards the rights of the dead[8].

The UK also allows for the cremation of the dead, if that was the desire of the deceased as enchanted in their wills. Cremation has been a common practice in the UK[9]. The constitution has a provision for medical referees playing a critical role in the initiation of a cremation process[10]. Therefore, the family members and the trustees have the legal mandate to cremate their loved ones if the deceased desired to be cremated, as stated in the wills.

While laws regarding who has the right to deal with the adult body after death are usually practical, most of them are also motivated by the cultural norms that the society has in place, which provide for dignity and respect to the dead. It is to the extent of dictating who in particular, has the prerogative of handling such bodies. However, lawyers and other stakeholders in the law field who come up with such laws have often been eluded with establishing a succinct piece of law that will stipulate who has the right to deal with an adult body after death. Such laws have often been ambiguous and have generated unrest amongst family members upon the death of a member, especially in countries such as the UK, which are governed by strict regulations of the dead. In the early 20th century, famous figures in the legal field such as Wesley Hohfeld contested the use of the word ‘right’ in such laws as confusing and ambiguous[11].

With that, therefore, Elizabeth and Rose have to stand guided on how their wishes when they die can be handled and implemented to the latter. There are certain fundamental components of their desires that they have to check keenly and ensure that they are per the UK provisions on the handling of the dead. First, Rose is widowed. Having no spouse, therefore, rules the trustee component of handling of her body once she dies. The spouse is usually the first trustee who is mandated by law to have legal rights of handling the bodies of their adult counterparts once they die. The law also provides for the replacement of the trustee, especially if the deceased had a will or if the trustee is not available, such as in Rose’s case[12]. Therefore, Rose is well catered for under the UK law for trustee replacement issues if she dies. What she needs to do to ensure that her desires are met once she dies is to draft a will. The will must be subjected to probate after she dies to ensure that the wishes of the decease can be met. As for Elizabeth’s case, having her spouse still alive guarantees that he will assume the role of the trustee once she dies. However, her spouse might as well die before she dies. That will change the role of trustee and a replacement will have to be found. Therefore, just like Rose, she will also need a will to ensure that subject probation the will shall be able to meet her expectations.

With all these rules and laws that the UK prides itself with, there is still more that can be done to ensure that the desires of the dead are respected to the last send-off. However, all these have to strike a balance between the rules of the state, the desires of the deceased and the desires of the family members. At the moment, there is no balance between the three parties. It is vindicated by the fact that the country has witnessed an upsurge of fines that are related to breaches of laws that govern the dead[13]. In 2016 alone, the penalties associated with the infringement of the rights of the deceased topped $3 million and that figure was expected to skyrocket within that timeframe[14]. That shows the level of imbalance that the UK has the moment in terms of such laws. That also means that most of the people are finding the current rules as challenging to abide by in the country. Therefore, lobbying has to be done countrywide to ensure that the views of the people are incorporated during the drafting of new laws and surrogate laws.

Conclusion

In conclusion, the laws regarding who has the right to deal with an adult body after death have for sure, been well provided by the law in the UK despite the breaches that have been witnessed in the recent past. That only shows that there is an imbalance between what the people wish and expect when their loved ones die and what the government has implemented. Overall, the UK has taken brave steps to implement such and have even backed multinational urgencies such as the United Nations in endorsing the regulations that these agencies have within the country. Elite individuals in the UK such Theresa May have publicly declared their stance on laws that govern the deceased in a show of support to respect for the dead. Elizabeth and Rose are therefore well placed to ensure that their desires after they die are well met.

Bibliography

‘Accessing UK Legal Resources’ Your Rights 422
Hohfeld wrote, ‘the term ‘rights’ tends to be used indiscriminately to cover what in a given case may be a privilege, a power, or an immunity, rather than a right in the strictest sense; and the authorities occasionally recognize this looseness of usage.’ Wesley N H, Fundamental Legal Conceptions as Applied in Judicial Reasoning and Other Legal Essays 36 (Walter Wheeler Cook ed., 1919)
‘The Cremation (England and Wales) Regulations 2008’ (Legislation.gov.uk) accessed January 8, 2020
‘Annual-Report-Chapter-2c; Hr’ (Human Rights Documents Online)
Conway H, ‘Five Laws about the Dead and Death That Might Spook You’ (Queen's Policy Engagement, 2016) accessed January 8, 2020
Stepputat, F (ed.) Governing the Dead. Sovereignty and the Politics of Dead Bodies (Manchester University Press, 2016)
Participation E, ‘Human Rights Act 1998’ (Legislation.gov.uk, 1998) accessed January 8, 2020
‘History of Modern Cremation in the United Kingdom’ (History of Cremation in the United Kingdom) accessed January 8, 2020
‘Wills, Probate, Inheritance & the Law: Law on the Web’ (LawOnTheWeb.co.uk) accessed January 8, 2020
Government Digital Service, ‘Search Probate Records for Documents and Wills (England and Wales)’ (GOV.UK, 2014) accessed January 8, 2020
Walker R, ‘The situations in which a trustee may be replaced’ (2013) 13 Equity & Trusts: Text, Cases, and Materials 5, 5.

Introduction

Elizabeth lives with her partner Henry, and they are not married, her friend Rose is windowed. The two friends have siblings but no living parents and children. While Elizabeth is Scottish living in Edinburgh, Rose is English living in London. The two are worried that upon their deaths, their wishes will not be respected. Despite there being a recognized right to a decent burial in common law, there is no general rule that exist as to whom the right of burial is approved. This paper seeks to explain the current law concerning who has the right to deal with an adult person’s body after death and to advise Elizabeth and Rose on what to do to ensure their funerals wishes will be carried out. The paper ends with an opinion as to whether the law as it stands in England, strikes a good balance between those different people and recommends on the changes to be done.

Current law on right to deal with dead body

The right to custody of a dead body for the role of a burial is under normal situations in the spouse or other relatives of the deceased.[15] While the primary and supreme right to custody of the body and control of the burial is conferred on the living spouse, their ability to control the burial is reliant on on peculiar conditions of each case.[16] For instance, even with a spouse, if the deceased had articulated any specific place or arrangements for their burial, consideration must be given. If there is a disagreement between a surviving spouse and next of kin, the spouse preferences prevail. If there is no surviving spouse, or they have waived their rights, the dead body is in the rights of the next of kin, based on the order of their relation to the decedent usually in the following order; children of 18 years and above, parents, brothers and sisters or more distant kin.[17] If two or more kin disagree, the decedent’s body remains with the individual who had the closest relationship to the deceased. The people with the right to dispose the body are the deceased’s personal representatives, that is, the executorsof the will or in absence of a will, the persons entitled to administer the deceased estate under the intestacy laws. The issue of the disposition of the dead body is also intricate in public interest, including public health, safety and welfare which are controlled by law rather than being the subject of the desires of an individual. In the case of Williams v Williams (1882), the deceased wishes were to be cremated when cremation was not allowed in England and Wales.[18] His executors ignored his wishes and the courts ruled they were right to do so. In more recent times, a different view about right to deal with dead body. In the case of Anstey v Mundle (2016), the courts ruled that the wishes of the deceased be honored.[19] The deceased originated from Jamaica and his wish was to be buried next to his mother. The court considered all relevant matters such as the deceased close connection with his family, his expression of his wishes in a will and the reasonable wishes of his family and friends. The ruling of the Anstey v Mundle (2016) shows that the law considers funeral wishes articulated by a deceased in a will.

Advise to Elizabeth and Rose

The advice to both Elizabeth and Rose are to create a will in which they explain how they want their funerals to be conducted after they had died. Since they both have written a explanation of precisely what they wanted in their ceremonies, they should include these requirements in their will so that the executors of their estate will respect their wishes, as seen in the case of Anstey v Mundle (2016). Although Elizabeth lives with her partner Henry, since they are not married, Henry will not have a right to deal with Elizabeth’s body when she dies. In the case of Elizabeth and Rose, the right to their dead bodies will lie with their siblings. Having a will therefore, will ensure their executors together with the siblings, obey the wishes of both Elizabeth and Rose when they die.

Disputes on Deceased wishes and balance of law in England

According to Forbes, 25% of deaths lead to family disagreements with over 20% of the disagreements relating to disposal of a body.[20] The law states that there is no property in a corpse; a body therefore, cannot be disposed of by a will; however, the role of a will is to deal with disposal of the property. Since a body is not property, the deceased person’s wishes in a will should not be legally binding. Other disputes have occurred where the state takes control of the dead person’s body. The law requires that the individual under a duty to dispose off the body with order of priority being the hospital if someone dies from a case of notifiable disease, the executor of the deceased’s estate and a individual who has precedence on intestacy. The law struck a balance on respecting the wishes of the deceased individual, their family and state when dealing with an adult’s body. As seen in the case of Anstey v Mundle (2016), the wishes of the deceased are respected. Additionally, the surviving spouse or the next of kin and executors have a right to determine how to dispose of the body of the deceased when there is no will. The government also protects public interest, including public health, safety and welfare creating a balance between the wishes of all parties involved.

Bibliography

Anstey v Mundle: ChD 2016
Forbes Solicitors. "No property in a corpse": body and funeral disputes on death. (2018) Accessed from https://www.forbessolicitors.co.uk/news/45228/no-property-in-a-corpse-body-and-funeral-disputes-on-death
Heather, C. The Law and the Dead. (Routledge, 2016)
Imogen, J "A grave offence: corpse desecration and the criminal law." Legal Studies 37, no. 4 (2017): 599-620.
Nora, M. Using the bodies of the dead: Legal, ethical and organisational dimensions of organ transplantation. (Routledge, 2019)
Williams v Williams (1882) 20 ch d 659

[1] Conway H, ‘Five Laws about the Dead and Death That Might Spook You’ (Queen's Policy Engagement, 2016) accessed January 8, 2020

[2] Government Digital Service, ‘Search Probate Records for Documents and Wills (England and Wales)’ (GOV.UK, 2014) accessed January 8, 2020

[3] Stepputat, F (ed.) Governing the Dead. Sovereignty and the Politics of Dead Bodies (Manchester University Press, 2016)

[4] ‘Wills, Probate, Inheritance & the Law: Law on the Web’ (LawOnTheWeb.co.uk) accessed January 8, 2020

[5] Participation E, ‘Human Rights Act 1998’ (Legislation.gov.uk, 1998) accessed January 8, 2020

[6] Accessing UK Legal Resources’ Your Rights 422

[7] ‘Accessing UK Legal Resources’ Your Rights 422

[8] ‘Annual-Report-Chapter-2c; Hr’ (Human Rights Documents Online)

[9] ‘History of Modern Cremation in the United Kingdom’ (History of Cremation in the United Kingdom) accessed January 8, 2020

[10] ‘The Cremation (England and Wales) Regulations 2008’ (Legislation.gov.uk) accessed January 8, 2020

[11] Hohfeld wrote, ‘the term ‘rights’ tends to be used indiscriminately to cover what in a given case may be a privilege, a power, or an immunity, rather than a right in the strictest sense; and the authorities occasionally recognize this looseness of usage.’ Wesley N H, Fundamental Legal Conceptions as Applied in Judicial Reasoning and Other Legal Essays 36 (Walter Wheeler Cook ed., 1919)

[12] Walker R, ‘The situations in which a trustee may be replaced’ (2013) 13 Equity & Trusts: Text, Cases, and Materials 5, 5.

[13] ‘Accessing UK Legal Resources’ Your Rights 422

[14] ‘Accessing UK Legal Resources’ Your Rights 422

[15] Conway, Heather. The Law and the Dead. (Routledge, 2016)

[16] Jones, Imogen. "A grave offence: corpse desecration and the criminal law." Legal Studies 37, no. 4 (2017): 599-620.

[17] Machado, Nora. Using the bodies of the dead: Legal, ethical and organisational dimensions of organ transplantation. (Routledge, 2019)

[18] Williams v Williams (1882) 20 ch d 659

[19]

Anstey v Mundle: ChD 2016

[20] Forbes Solicitors. "No property in a corpse": body and funeral disputes on death. (2018) Accessed from https://www.forbessolicitors.co.uk/news/45228/no-property-in-a-corpse-body-and-funeral-disputes-on-death