This is not always a frequent point of disagreement, but arguments over who should arrange a funeral, and who should take charge of the estate, do arise – often at the most sensitive of times. A recent High Court decision shows how the law resolves such issues, and serves as a sober reminder that delay and obstruction at such a time can carry consequences in this world as well as the next.
Who has the right to arrange a funeral?
In English law, no one "owns" a body. There is, however, a duty to see it disposed of properly with, in the courts' words, ‘all proper respect and decency, and without unreasonable delay’.
The right, and the responsibility, to arrange the funeral normally falls to the person entitled to deal with the deceased's estate. Where there is a will, that is the executor appointed in it. Where there is no will, it is the surviving spouse or civil partner who ranks ahead of children, as per the order of priority set by the Non-Contentious Probate Rules 1987, and who can apply for "letters of administration".
What happens when the family cannot agree?
Where relatives are at an impasse, a court can step in and decide who should administer the estate and take charge of the funeral. Crucially, the court is not rigidly bound to follow the order of entitlement. Under Section 116 of the Senior Courts Act 1981, it can "pass over" a person who would otherwise have the right where there are "special circumstances" that make it necessary or expedient.
In this case, the mother had died without a will, and her children found themselves at an impasse after four years. Two of their number had obstructed matters in their grief, causing the funeral to be delayed for many years. The Court eventually appointed the son who had a practical, workable plan and the support of the majority of the siblings, passing over the two who had actively obstructed proceedings owing to an obsessive grievance. In doing so, it applied the guiding principle that the overriding aim is for the person to be laid to rest with proper respect and with minimal delay, while weighing the deceased's own wishes and those of the family.
The underlying principle is that equal entitlement under the intestacy rules does not give anyone the right of veto, and a relative who will not act, or who simply obstructs, can be passed over in favour of one who will.
Delay and obstruction have consequences
The Court’s decision also shows that frustrating or delaying a funeral is not without cost. The siblings responsible for the delay were made to bear the resulting storage charges from their share of the estate, and were also ordered to pay the other side's substantial legal costs – a clear marker of the Court's disapproval.
The case in summary:
- Funeral responsibilities belong directly to the estate administrator.
- Equal entitlement does not grant a right of veto, as courts can bypass uncooperative relatives, although the wishes of the deceased, the family and practicality are considered first and foremost.
- Courts can break a family impasse by appointing a willing relative under the Senior Courts Act 1981.
- Obstructive relatives may face punitive legal costs under exceptional circumstances.
- While the laws of England and Wales prioritise swift, respectful burial, the family hierarchy remains the default, and Section 116 requires special circumstances to implement.
Several practical lessons follow. The first is the importance of making a will, as it enables you to appoint executors you trust and record any funeral wishes. While such wishes are not strictly binding, recording them gives clear guidance and limits any scope for posthumous argument. The second is that anyone who takes responsibility for a funeral or an estate should act promptly and keep the rest of the family informed, rather than letting matters drift. The third is that where agreement genuinely cannot be reached, seeking early legal advice can prove cost-effective, as a little forward planning can prevent a solemn occasion from becoming a bitter and costly battle of wills.
Disclaimer: This simplified summary of a UK legal case is intended for general information only. It is based on a claim issued in the High Court. It is not intended as legal advice, may omit important detail, and may not reflect any subsequent developments or appeals. Please read the full judgement and seek professional legal advice before acting.