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?
