Guest post by Tim Morris
The House of Commons Work & Pensions Committee report published on 31st March contained evidence that a funeral director had refused to hand over the ashes of a deceased person to the family concerned until the funeral account had been settled. It should be noted that the ashes of a deceased person have the same status in law as the body of a deceased person, both being the ‘remains of a deceased person’. This is amplified in law in England & Wales in respect of exhumation as lawful authority, via Faculty from the Church of England or license from the Ministry of Justice to exhume, is required in respect of exhumations of both ashes and the body of the deceased.
In the Court of Appeal in Hunter [1974] Q.B. 95 CA (Crim Div) it was held that:
…if it is a crime for the person responsible for burial to prevent it, there is no reason for regarding the act of a stranger in preventing burial as any less reprehensible. We think that in this connection burial means lawful and decent burial. A ‘stranger’, in this context, could include an undertaker. Therefore, whilst there is no direct duty upon an undertaker [funeral director] to dispose of a body after death (that duty lies with the administrator the deceased’s estate, the local authority or hospital), undertakers and any other ‘stranger’ have a duty to not prevent the lawful and decent burial of an individual.
Surely it would not be in the interests of a funeral director to withhold access to ashes as it is unlikely that a person that can’t or won’t settle an account would make an approach. Over time this could result in a cupboard overflowing with urns and caskets as there is no lawful mechanism for a funeral director to dispose of such ashes.
Similarly, grave deeds should perhaps not be made out in the name of a funeral director who then transfers the grave ownership to the family once the account has been settled? Is this not a contract debt that should be chased in the courts as payment of disbursements by a funeral director is part of a contract? The Local Authorities Cemeteries Order 1977 basically states that no [further] burial can take place in any grave nor memorial erected on any grave without the written consent of the owner of the right.
Whilst the majority of good funeral directors would not contemplate nor want to adopt any of the above it does pose a cautionary note for those considering them. Doesn’t it?
Credit control is a painful issue I’m sure to the good funeral director who has both a compassionate and commercial outlook.
Of course with good honest clients who have the means and intention to pay for what they have bought on credit, there is no issue.
However there are many gray areas. Clients who can’t pay, and clients who resent passing the deceased’s insurance proceeds or such to the funeral director!
I believe there is a point of law which permits the holding of relevant items until the settlement of account. However there is also cremation law defining ashes in the same manner as the deceased body, unless of course the funeral director is the applicant and therefore legitimately claims the ashes.
Bear in mind also that any costs not recovered on one funeral will be absorbed into the companies overheads and form part of the increasing bills of the honest families who only buy what they can and will pay for.
The issue with grave deeds (and cremation fees) is really simple! Funeral directors as private businesses should not be forced to act as guarantor/debt collector for public authorities selling burial ground to the rate paying citizens.
It is all well and good to say get the money up front, but some families just can’t do that. And of course that would just add weight to those who think funeral directors shoud run as charities rather than businesses!
Trust me. SOME funeral directors face these delicate matters with considerable anguish.
“form part of the increasing bills of the honest families who only buy what they can and will pay for.” It really hurts when the families who had no intention of paying even the disbursements order lots of extras. How many of these people are bothered about the ashes? There must be cupboards up and down the country with unclaimed and unwanted ashes whether or not the clients have paid in full.
Great post – thanks Tim!