After a protracted legal battle, director Guy Ritchie was recently granted permission to create a private burial ground on his Wiltshire estate. The high-profile dispute over his funeral wishes reflects an often-overlooked issue that can cause friction in the immediate run-up to a death. Very often, the first issues that arise after the death of a loved one are disputes regarding the organization of their funeral and burial.
Who has the right to handle the funeral?
The law regarding who has the right to handle the body of the deceased or arrange the funeral is often misunderstood. Many assume that the deceased person's “family” automatically has the authority to make such decisions. However, despite common misconception, “family member” has no legal meaning or standing in this context.
In reality, the individual who has the right to administer the decedent's estate has the sole authority to decide the funeral arrangements. If the deceased left a will, then he is the person appointed as executor. If there is no will, another legal document, such as a trust, can also appoint an individual to make decisions. If the deceased did not make their wishes known, only then the closest living relative, or next of kin, is usually responsible for making decisions. The order of priority for relatives is usually spouse, grown children, parents, siblings and more distant relatives.
Disputes that arise between the family and the executors
Disputes can arise over simple matters such as in which church or other place the funeral will be held, what type of coffin to use, which cemetery to choose or which tombstone and inscription is most appropriate.
It can be especially difficult when the appointed executor disagrees with some or all of the deceased's family regarding the funeral wishes. Complex family dynamics and the increase in the number of blended families mean that disputes in this area are on the rise.
Take an individual who had remarried and named their children from a previous relationship as executors. When that individual dies, the surviving spouse may feel that the funeral decisions are theirs and may disagree with the stepparents, who have their own opinions about their parent's funeral. Such scenarios can lead to fraught and bitter disputes. Alternatively, it may happen that more than one executor is named in a will and these two individuals do not agree on the arrangements.
Matters can become more complex when the validity of the will itself is challenged. If a will challenge is successful, then the estate will be administered under the terms of a valid previous will, which may include different executors. In such cases, it may not be agreed that the executor has the power or right to decide on the funeral arrangements. However, it is not possible, or in anyone's interest, for the funeral to wait until the validity challenge is determined, which could take up to two years.
Funeral homes and crematoriums can also often complicate matters as they have a contractual agreement with the individual who instructed them and that same individual is responsible for paying their bill. This individual may not be the one who actually has the right to handle the funeral arrangements. This leads to a disconnect between the individual with the right to make decisions and plan the funeral and the one with whom the funeral home/crematorium is associated.
Ways to protect against disputes
A death in any family is often a time of high emotion and trauma, especially if the death is sudden. Understandably, family members may not think clearly or calmly and may not communicate or compromise as easily as they might under ordinary circumstances.
Selection of implementer(s) should be carefully considered. An individual with a high degree of emotional intelligence and who is trusted and liked by key family members should be well positioned to approach matters sensitively and in a way that prevents any disagreements. Indeed, such soft skills can be far more important than an executor's legal knowledge or financial skills. Ultimately, executors can seek professional advice where necessary.
Clients appointing two executors should consider their personalities. This should include whether their decisions on issues are likely to agree and whether they are able to compromise and resolve conflict.
Furthermore, it is very important that testators carefully specify the details of their funeral wishes in their wills, while also leaving room for common sense where necessary. Providing clear and detailed instructions in a will may seem pedantic, but it can help avoid such disputes during a stressful time for your client's family. Most executors and families will follow the wishes of the deceased if they are available. The information will also be invaluable to the court if they are to be included.
If the parties are unable to resolve the conflict, the only option is to involve the courts. Funeral disputes can be lengthy, distressing and costly, especially if legal action is required. Court action will inevitably delay the burial and, therefore, the grieving process of the loved ones involved.
Funeral disputes are just another reason to seek tailored legal advice on the preparation of wills and estate management. This will provide peace of mind for relatives and avoid bitter disputes over burial rights.
Cathryn Culverhouse is a partner at DMH Stallard.