Burial Disputes – who has the right to the Deceased’s body

When someone dies, who really does have the right to make decisions about the deceased’s body for the purposes of making funeral arrangements? Do the deceased’s family have any additional rights over and above any unrelated executor named in the will? Given that funeral arrangements are usually made prior to there being a grant of probate, how is any dispute resolved? Some people think that the right to make funeral arrangements would lay with the deceased’s next of kin, but this is not the case.

In the 2023 case of Otitoju v Onwordi, this was the issue for the judge to consider. This case involved applications to the Court in respect of the funeral arrangements of the late Peter Adebayo Otitoju. One of the deceased’s children (a daughter who was supported by her siblings), issued a claim for an order to be entitled to possession of her father’s body and to make arrangements for its disposal. They also issued an application for an interim injunction restraining the defendant, who was the deceased’s partner (they were unmarried), from taking possession of the deceased’s body or making any arrangements for its disposal. The claimant claimed that the deceased had not in fact lived with the defendant and that she did not move into the deceased’s home until after he had died. The defendant also claimed that the deceased died intestate i.e. without having left a will.

The claimant’s application for an interim injunction was successful and the defendant was restrained from taking possession of the deceased’s body. However, the defendant then applied to set aside the injunction so that she could take possession of the deceased’s body and to make the funeral arrangements herself. In applying to set aside the interim injunction the deceased’s partner relied on a Will allegedly made by the deceased dated 15^th July 2023 in which her daughter and another person were named as executors and trustees. She also disputed the claimant’s stating allegation that the defendant did not live with the deceased.  Instead, she claimed to have lived with the deceased for 18 years. Her position was that the deceased did not have a good relationship with his children and that they would not have been aware of the deceased’s Will.

The claimant proceeded to challenge the validity of this Will.

A second claim was issued by the deceased’s partners daughter (who was named as an executor and trustee in his Will), against the deceased’s daughter (who was the claimant in the first claim but a defendant in this second claim), for an order preventing her from taking possession of the deceased’s body and declaring that the executors were entitled to possession of the body for the purposes of the funeral. She too issued an application for an interim injunction.

When considering the Will, the Judge, Mr Justice Roth, applied the presumption that as the Will appeared to have been properly executed in accordance with the Wills Act 1837, that it was valid and as such it was up to the deceased’s daughter (who was challenging its validity), to rebut this presumption. It was the daughter’s position that special circumstances applied because the validity of the Will was being challenged and therefore the deceased’s funeral arrangements should not automatically be made by those named as executors in the Will.

It was held that the special circumstances raised were not sufficient and did not justify overriding the position of the executors under s.116 Senior Courts Act 1981. Therefore, the executors were responsible for making the deceased’s funeral arrangements and not the deceased’s biological children.

It is important to note that in the event that the deceased had died intestate, then the deceased’s children would have had the right to possession of their father’s body and to make the funeral arrangements. This would be the case even if the deceased did not have a good relationship with them and despite having been with his partner for 18 years.

These types of claims do not appear in court very often and the cases are determined on their own facts and whether they give rise to any “special circumstances”, under which the Court might depart from the general rule that the executors are responsible for making the deceased’s funeral arrangements. It is worth noting that when anyone prepares a Will that it will probably be the executors who would be responsible for making the funeral arrangements and this may well include making a decision as to whether there should be a burial or cremation (if not specified in the Will). In the event that an individual dies intestate, then the responsibility would lay with the person who would be entitled to obtain a grant of letters of administration. In such circumstances the order of priority would be: a surviving spouse or civil partner, any children, any parents, any siblings, any grandparents, and finally any aunts and/or uncles.  It would not include an unmarried partner.

Get in touch with our Contentious Probate team

To speak to a member of our expert team about a will dispute, contact us today by calling 0330 175 7621 or email us at enquiries@ibblaw.co.uk.