Ashes: what’s the legal position? (Part 2)

To see part 1 of Dr Conway’s feature on ashes, click here.

With cremation, what happens at the crematorium is only part of the process: there is the issue of what happens to the ashes afterwards, and difficult questions arise in two basic situations.

The first is where the deceased’s family disagree over who is entitled to the ashes. The second is where ashes are being used as leverage to secure payment of outstanding funeral expenses.

In last month’s SAIFInsight (issue 207), we covered the release and collection of ashes from the cremation authority, and the legal rules around that. But where the ashes have been released to an applicant or a particular nominated individual, this raises another question: are they entitled to hold on to them, and to decide what happens to the ashes?

If the ashes are released to the applicant or a particular nominee, this does not mean that this particular individual has the legal right to hold on to the ashes. The law gives the legal right to decide the deceased’s funeral arrangements to his or her executor (assuming the deceased left a valid Will) or the highest ranking next-of-kin on intestacy (which is the surviving spouse or civil partner, followed by the deceased’s children, then parents, then siblings etc. – but excluding the deceased’s cohabiting partner or step-children, as the law currently stands).

This individual has the legal right to possession of the deceased’s remains, and this ultimately extends to the ashes. So the executor or highest ranked relative can insist on having the ashes returned to them, despite not having applied for cremation, and can decide whether to inter, scatter or retain the ashes. (It is worth noting that the position in Scotland will shift a little in the future, because s 65 of the Burial and Cremation (Scotland) Act 2016 gives a slightly different list of individuals who have the legal right to decide the deceased’s funeral arrangements: the executor drops out, and cohabitants rank beneath spouses while step-children have the same rights as children. The highest ranked individual would, however, have a strong legal claim to the ashes – applying this basic principle.)

There are no direct English cases on this point, but cases decided in other jurisdictions whose laws are derived from the English legal system have confirmed that the executor or highest ranked kin has the legal right to the ashes after they have been released by the crematorium. The best example is the Australian case of Robinson v Pinegrove Memorial Park.

Here, a son had arranged for his father’s remains to be cremated (the widow and the other children all supported this), but subsequently contracted with the crematorium to place half the ashes in a commemorative rose garden at the crematorium, which was located in the Sydney suburbs; the other half was to be given to the widow for scattering in a park in Birmingham close to where the family had lived before moving to Australia. However, the widow wanted to scatter all of the ashes in England, according to her dead husband’s wishes.

The deceased’s executor intervened on the widow’s behalf, claiming that the ashes should be released to him (at which point the executor would pass them to the widow). The court agreed; the son’s contractual arrangement with the crematorium was subject to the executor’s right to decide how the deceased’s ashes should be disposed of.

One final point is worth noting here. Where families are fighting over who gets the ashes, the courts will not (as a compromise solution) order the ashes to be divided if one of the parties objects to this. The English case of Fessi v Whitmore is authority on this point: here the judge refused to split the ashes of a dead child between the boy’s parents, because the father was fundamentally opposed to it.

Ashes as security for funeral debts?

Anecdotal evidence suggests that a small number of funeral directors are holding on to ashes, and using them as leverage to secure payment of outstanding funeral expenses. This is not standard practice within the funeral profession; most of the negative publicity is targeted at local authorities who, faced with increasing numbers of funerals because the deceased’s family are unable (or unwilling) to pay, are apparently refusing to hand over the ashes as a means of leveraging payment (and also as a means of deterring other families from having local authority funded funerals).

This is something that should be treated with caution, since there is probably no legal right to retain ashes in this manner. Because English law takes the view that a corpse is not property, it is difficult to see how post-cremation ashes can be classed as property in any legal sense.

A number of old English cases also took the view that, if a corpse is not property, the deceased’s creditors cannot hold it as security until the deceased’s family pay off his debts. One suspects that the same rationale would apply to ashes – and while one way of trying to circumvent this would be to include some sort of term in the provision of service contract that expressly states that the ashes will not be released until funeral expenses are paid in full, there must be questions over whether or not this is legally enforceable.

Funeral directors might be tempted to keep ashes until payment is made, for obvious reasons: funerals are expensive and families often make arrangements without thinking about where the money will come from or knowing what the value of the deceased’s estate is; funeral directors, especially those smaller firms, simply cannot afford to have bills unpaid. However, refusing to hand over the deceased’s ashes is probably not the best way to ensure payment: legalities aside, the potential damage to reputation can be costly, and it may be better simply to sue the contracting family members for non-payment of debts.

Want to know more? See this month’s full issue for a fully referenced version of this feature.

Tags: , , , , , , ,