Right of possession and disposal

Individuals may have a right to possess a corpse for the purposes of burial. It is arguable that for most purposes this is more appropriately viewed as correlative of the obligation to dispose of a deceased person’s body. In Williams v Williams it was acknowledged that the duty of disposal leads to a right to possession of a corpse until its lawful disposition. However, this does not extend to a right to have organs that have lawfully been removed from a body, whether for post-mortem or other purposes, returned prior to the disposition.

At common law the right of possession of a body for the purposes of burial falls to the deceased’s personal representative or the executor of their will. This is in preference to the surviving spouse or next-of-kin (unless they fulfil one of these roles). In cases where no personal representative or executor has been appointed, the person with the best right to the grant of administration takes precedence. This situation was considered in Burrows v HM Coroner for Preston, in which the court was required to determine who had the right to make funeral arrangements for the deceased teenager. The deceased had lived with his uncle for a number of years because his natural mother was a heroin addict. The deceased’s mother wanted him to be buried while his uncle preferred cremation in accordance with the deceased’s expressed wish. The court’s approach to this dispute was as follows:

• There is no property in a body but various people have rights and duties in relation to its disposal.
• The deceased’s personal representative, executor of the will and administrator of the estate have a right to determine the mode and place of disposal.
• The personal representative’s claim to the body will usually oust other claims.
• Where a personal representative is not appointed, the person with the best right to the grant of administration takes precedence. Where there are two or more persons ranking equally then the dispute must be decided on a practical basis.
• The domestic law, in r 22 of the Non-Contentious Probate Rules 1987, is clear about how to decide precedence.
• However, if there is a dispute about who should have the right to possession of the body for the purposes of disposal, s 116 of the Senior Courts Act 1981 enables the court to appoint some other person as administrator and so displace the normal rules of priority. The exercise of such a power would be very rare.
• In such situations two questions should be asked. First, whether there are any special circumstances which may displace the order of priority in r 22, and secondly, whether it is necessary and expedient, by reason of those special circumstances, to displace the normal order of priority.

In deciding whether the deceased’s uncle should be appointed as administrator (thus displacing the normal rules) the court took into account, as special circumstances, the deceased’s clear wish to be cremated and went on to state that in as much as domestic law said that the views of the deceased could be ignored, this was no longer good law. The court also considered the right to privacy and family life under Art 8 of the ECHR.

In Lakey v Medway Foundation Trust the claimant was refusing to bury the body of his wife, which had been kept in the defendant’s hospital mortuary for over four years. The court held that whilst there was no right of ownership in a dead body, there was a common law duty to arrange for its disposal, which embodied a right to retain the body until burial or cremation. That duty primarily fell to the personal representative of the deceased. However, that right also carried with it a duty to ensure disposal within a reasonable period. Where, as in this case, the personal representative had not carried out his duty then those with the body in their lawful custody had the power to make the proper arrangements instead. Hence a declaration permitting the defendant NHS Trust to bury or cremate the body was made.

Section 46 of the Public Health (Control of Disease) Act 1984 provides that it is the duty of a local authority to arrange for the burial or cremation of the body of any person where it appears that no suitable arrangements for disposal have been or are being made.

This section was considered in Re Ian Stewart-Brady (Deceased) in relation to the disposal of the body of the notorious Moors murderer. Ian Brady had appointed his solicitor as his executor but they had failed to arrange for the disposal of his remains five months after his death. Orders were therefore sought by local authorities whereby they be permitted to arrange for disposal under s 46, or they be appointed as administrators pursuant to s 116 of the Senior Courts Act 1981 for the purpose of arranging the disposal. Alternatively, the court was asked to exercise its inherent jurisdiction to give directions as to the disposal of the remains.

The court concluded that the local authority’s duty under s 46 was not engaged as, although the local authority was not aware of the details of any arrangements made by the executor for disposal of the body, it understood that the executor intended to make such arrangements.

In relation to s 116, the court accepted that an administration order could be made for the limited purpose of disposing of the body if special circumstances made it necessary or expedient to do so. In that case, the special circumstances included the fact that the victims’ families might be legitimately offended by an insensitive disposal, and the public interest in ensuring that disposal did not create unrest or disorder. The court specifically acknowledged that public policy required that any body should be disposed of decently and lawfully with due dispatch.

The court also confirmed that it had power under s 116 and also pursuant to its inherent jurisdiction to give detailed directions as to the disposal of the remains. On the unusual facts of the case it was determined that although the deceased’s wishes were relevant, they did not outweigh the need to avoid justified public indignation and actual unrest and that accordingly the court could and should direct precisely how the body should be disposed of and even whether music could be played during the cremation. This latter direction was required due to a concern that a particular symphony would be played which tells of a killer haunted by his victim in the afterlife (which would obviously have been distressing and offensive to the victims’ families).

The right to possession has been expanded to include a coroner’s right to possession of a body when this is part of their enquiries in this role. Further, in some situations it may be that the occupier of the premises where the deceased died, has a right to dispose of the body.