Funerals – A sensitive issue for Executors further complicated by Covid-19 Rules
The media is full of reports of the additional stress and distress caused by the need to socially isolate in circumstances where loved ones are close to death and family members have to be excluded from their bedside. That stress is increased when only immediate family members preferably of the same household, can be present at the funeral and have to maintain a safe distance whilst attending. Wakes, open coffins and other ways by which family and friends can pay their respects or celebrate the life of the deceased cannot take place. All of this makes commencing the grieving process even more difficult.
In the middle of all of this are Executors appointed by the deceased in their Will to deal with their affairs after death. Many Wills contain clear instructions as to the type of funeral (burial/cremation/at sea) wished by the deceased and it is not uncommon to have quite precise details in a letter kept with the Will of how the funeral ceremony itself should be conducted and for example where ashes should be scattered.
Many Executors are also family members and must walk the difficult tightrope of trying to do what the deceased wanted; or what the family considers is right; whilst remaining inside the emergency legislation. Certain things are clearly not possible at present and in many ways that is the most straight forward of decisions to be made by Executors when dealing with funerals.
The most difficult aspect for many family members to accept is that the primary duty to properly deal with “disposal” of the body falls to the Executors (or Personal Representatives if the deceased had no Will). They have the right to take possession of the body and to decide on place and mode of burial even if other family members object. They must have regard to the wishes of the deceased, but they are not bound by them. Likewise, it is the Executors who have the right to choose the Headstone and inscription.
In the vast majority of cases the Executors will try and find a way to follow the deceased’s wishes or the wishes of the majority of the family where the deceased expressed no preference in the Will or in a letter of wishes left with the Will. They can for example agree that the ashes following a cremation can be divided between two sections of the family who are not in agreement with how they should be disposed of. They can choose not to follow the deceased’s wishes if the family are agreed as to something else and particularly if that wish was expressed in a Will made many years ago and the situation then was very different.
There are (fortunately) very few cases where the dispute is so intense that the Courts get involved. Those that do come before the Courts are mainly where co-Executors cannot agree things between them. A Court will rarely agree to divide the ashes if one Executor is strongly opposed to it. The Judge will make a decision and it will be one which will try and do justice and fairness to both sides. Ultimately however the cost and additional distress of making the Court decide will have a catastrophic effect on the wider family dynamics for years to come.
Our Dispute Resolution Team deals with many contentious probate issues and can be contacted on DRTeam@herrington-carmichael.com or 01276 686222.
This reflects the law at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought as appropriate in relation to a particular matter.
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We are solicitors in Camberley, Wokingham and London. In 2019, Herrington Carmichael won ‘Property Law Firm of the Year’ at the Thames Valley Business Magazines Property Awards, ‘Best Medium Sized Business’ at the Surrey Heath Business Awards and we were named IR Global’s ‘Member of the Year’. We are ranked as a Leading Firm 2020 by Legal 500 and Alistair McArthur is ranked in Chambers 2020.