Burial disputes – whose voice is heard and followed?

After someone’s death, there can be a divergence of views between family members, loved ones and close friends over a burial, funeral or possession of ashes. Given that a person’s passing can trigger understandably strong emotions, whose voice is heard and who has the final say? 

This is a sensitive issue the High Court recently had to pass judgment on. The case of Patel v Patel [2025] EWHC 560 Ch concerned a dispute between two co-executors on how to dispose of the deceased’s body. In order to understand how the judge, HHJ Matthews, reached their decision, it is important to understand the law and approach, which may provide prospective warring parties with some useful guidance. 

HHJ Matthew’s words and warning, eloquently and succinctly, capture the main issues:

“Disputes between surviving relatives of a deceased about funeral arrangements are a tragedy for all concerned. They cause great sadness, even anguish, they prevent the relatives coming to terms with their grief and moving on with their lives, and they often cost a great deal of money. On top of all of that, they need to be resolved as quickly as possible, because, whilst the body remains undisposed of, lives are on hold, and resources (usually public resources) are tied up which could be used to assist others”. 

The starting point is that a body is not a property, i.e. it cannot be “owned”. This law stems from the 1882 case of Williams v Williams [1182] 20 ChD 659.  

There is a duty at common law to arrange for a proper disposal. This duty primarily falls on the personal representative. 

Where there is a will, the responsibility first falls on the executors. If the executors are unable to, then it falls on the residuary beneficiaries. As a will speaks from the date of death, an executor should not need to wait for a grant of probate to be able to take custody of the body. 

There is a marked difference where a person passes away without a will i.e. an intestacy. Rule 22 of the Non-Contentious Probate Rules 1987 sets out the hierarchy and priority of persons who have the responsibility to dispose of the body (as well as administer the estate) in the following order:

1. the surviving spouse i.e. husband or wife;
2. the children of the deceased, or grandchildren if the child has died;
3. the mother and father of the deceased;
4. blood related sisters and brothers, or if the sibling has died, nieces and nephews;
5. grandparents; and 
6. blood related aunts and uncles, or cousins if the aunt or uncle has died. 

Normally an intestacy personal representative has to wait for a grant of probate to be issued, to have the power to take custody of the body. 
Given the wide class of potential parties sharing an equal priority and duty, who all may have divergent views, this can give rise to disputes occurring. If an agreement cannot be reached, the court normally has to intervene. 

The court has the inherent jurisdiction to deal with burial disputes. It can also do so under s.116 of the Senior Courts Act 1981, which gives the court the power to appoint a personal representative and by extension, to deal with the burial or disposal of the body.

The courts will consider the following factors:

1. the deceased’s wishes;
2. the reasonable requirements and wishes of the family who are left to grieve;
3. the location the deceased was most closely connected with; and
4. the body being disposed of with all proper respect and decency and if possible, without any further delay. 

Curiously, there is a general assumption that a testator’s funeral or burial wishes are binding and legally enforceable. Ordinarily, those wishes will be followed if there is agreement between the people who are entitled to dispose of the body. However, where there is a dispute, the deceased’s wishes, included in a will, are not determinative. 
The fourth factor is generally considered as the most important one. 
In Patel, a dispute arose between the two executors over the manner and location of the funeral and burial. 

The judge found that the deceased moved to the UK in 1954 and lived in the UK for over 70 years, holding a British, not Indian passport. He and his wife raised their children in the UK. He last visited India in 2003. His wife died in 2024 and she was cremated in the UK, following a Hindu funeral, in line with the wishes that she expressed in her will. The deceased’s will, executed some 30 years earlier, was silent on his funeral wishes. The responsibility therefore fell on his two executors, his son and daughter. 

One executor wanted to cremate the deceased and scatter the ashes in England. The other executor wanted to take the body to India for burial, as per her claim that the deceased expressed this wish to her shortly before his death. 

HHJ Matthews, having applied the four factors and given his findings of fact, ordered that the deceased be cremated and ashes scattered in the UK, in accordance with the appropriate Hindu rites. The reasoning centred on the deceased being most closely connected with the UK. The judge added that even if he found that the deceased’s wishes were to be buried in India, he would still have directed a cremation in the UK with Hindu rites. It again debunks that common assumption that a testator’s burial wishes are binding and legally enforceable.

 
It goes without saying that each dispute and case turns on its own facts: the four criteria provide useful guidance on the factors the court will consider when determining a burial dispute. 

Applying those factors to the facts and moving quickly if a dispute does arise, can help avoid the significant time, cost and emotional stress of such a dispute reaching a court room. If funeral arrangements have already been made, then time is even more of the essence, as an injunction may be first required, before any dispute over the burial is heard. 

Our specialist team, who have experience dealing with such emotional and delicate issues, are ready to assist, should you have your own burial dispute.