Burial disputes: Who deals with the funeral after the death of a loved one?

After a protracted legal battle, director Guy Ritchie was recently granted permission to create a private burial ground at his Wiltshire country estate. The high-profile dispute over his burial wishes reflects an often overlooked issue that can cause friction in the immediate wake of a death. All too often, the first issues that arise after a loved one dies are disputes about their funeral and burial arrangements.

Who has the right to deal with the funeral?

The law regarding who has the right to deal with the deceased’s body, or to arrange the funeral, is often misunderstood. Many assume that the deceased person’s “next of kin” would automatically have the authority to make such decisions. However, despite the common misconception, the term “next of kin” has no legal meaning or standing in this context.

In reality, it’s the person who has the right to administer a person’s estate that has the sole authority to decide the funeral arrangements. If the deceased left a will, then it’s the person appointed as executor. If the deceased didn’t make their wishes known, only then is the closest living relative usually responsible for making decisions. The order of priority in this regard is typically spouse, adult children, parents, siblings, and more distant relatives.

Disputes arising between family and executors

Disputes can arise regarding simple matters, such as which church or other venue to hold the funeral in, what sort of coffin to use, which cemetery to select or which headstone and inscription is most appropriate.

It can be particularly difficult where the appointed executor doesn’t agree with some or all of the deceased’s family regarding the funeral wishes. Complex family dynamics and increasing numbers of blended families mean that disputes in this area are on the rise.

Take a deceased who remarried prior to death and appointed their children from a previous relationship as executors.  In this scenario, the surviving spouse may feel that decisions about the funeral are theirs to make and may not agree with the stepchildren who have their own thoughts on their parent’s funeral. Such scenarios can lead to fraught and bitter disputes. Alternatively, it may be that more than one executor is appointed in a will and those two individuals don’t agree on the arrangements.

Matters can become more complex still where the validity of the will itself is being challenged. If a will challenge is successful, then the estate will be administered as per the terms of an earlier valid will, which may include different executors. In such cases, it may not be agreed that the executor truly has the power or right to make decisions regarding funeral arrangements. However, it’s not possible, or in anyone’s interests, for the funeral to wait until the validity challenge has been determined, which could take as long as two years.

Funeral homes and crematoriums can also often complicate matters as they have a contractual arrangement with the person who instructed them, and that same person is liable to pay their bill. This person may not be the person who is actually entitled to deal with the funeral arrangements. This leads to a disconnect between the person who has the right to make decisions and plan the funeral and the person with who the funeral home/crematorium is liaising.

How to protect yourself against disputes

A death in any family is often a time of high emotion and trauma, particularly if the death is unexpected. It’s perfectly understandable that family members may not be thinking clearly or calmly and not communicating as well or compromising as readily as they might in ordinary circumstances.

The selection of executor(s) should be carefully considered. A person who has a high degree of emotional intelligence and who’s trusted and liked by the key family members should be well positioned to sensitively approach matters in a way that prevents any disputes from arising. Indeed, such soft skills may be far more important than an executor’s legal knowledge or financial acumen. After all, executors can call on professional advice where it’s needed.

Where two executors are appointed, careful consideration should be given as to the personalities of the individuals concerned. This should include whether their decisions on issues are likely to be aligned and whether they’re able to compromise and resolve conflict between them.

For more information or if you need advice in relation to a burial dispute involving family members then get in touch with one of our contentious probate solicitors.