Whose Body Is It Anyway?
Why is it that when setting out the funeral instructions in a will, also known as the “disposal of body” clause, the wording starts with “I wish” or “I desire”?
What happens if an executor to a will has organised the cremation of the body, only to later find out (often to their horror) that the deceased has specifically requested that they be buried next to their long past loved ones?
To the surprise of many, the answer to these questions is that this will clause is not legally enforceable. Case law has confirmed, principally with Williams v Williams (1880) 20 Ch D 659 and latterly with Dobson v North Tyneside Health Authority (1996) EWCA Civ 1301), that no-one can own a deceased’s body.
The exceptions here are where the body has undergone a process and then the results of such process result in the body, or a part of it, acquiring a value. This was the case in Doodeward v Spence (1908) 6 CLR 406 where the appellant succeeded in recovering a preserved foetus from the police that he had previously bought.
However, in general, if no-one can own the body, then no-one can sue as if they did own it. Hence such funeral instructions cannot be legally enforced, they are simply guidance for the personal representatives of the estate who have ultimate responsibility for disposing of the body.
The Law Commission of England and Wales has decided to review this approach in order to align it with modern expectations and to reduce disputes between family members. The goal is to provide greater legal clarity to enforce the wishes of the deceased. They will also review the processes, methods and rights concerning the disposal of body and look to suggest a “future-proofed” set of laws to enable safe and dignified new processes for disposal. They will start with a scoping project to agree terms of business with the government and then set out the work that they will carry out in greater detail.
Although on the face of it this will provide transparency, it does by its very nature leave the door open for litigation if there is a legal case to argue that personal representatives do not fulfil what will be their full legal obligations. As ever, what appears to assist the public may again be another avenue for legal conflict and further income for lawyers.