By Harriet Betteridge.
Funeral disputes are more common than you might think
Understandably, it’s hard to talk to loved ones about what you want for your funeral. But it pays to plan ahead. You never know what might happen!
There are all sorts of decisions that need to be made when planning a funeral such as deciding between cremation or burial, what music should be played, whether there should be flowers and where ashes should be scattered. These may be the kinds of decisions you just don’t want to think about and are happy for your family to sort out.
Sadly, the recent legal battle between a brother and sister over their mother’s funeral and burial highlights the potential for funeral disputes amongst families following the death of a loved one. In that particular case, Mrs Iris Freud died and was survived by her adult son and daughter. Mrs Freud was the widow of a practising Jew but had not converted from Christianity to Judaism and ceased to observe the Jewish rules after her husband’s death.
Her son wanted Mrs Freud to have a ceremony fitting with Jewish customs, whereas her daughter wanted a Christian service during which a song that her father had sung to her mother would be played. The siblings also had differing views on where their mother should be buried. Ultimately they failed to resolve their differences and took their fight to the High Court. Oh dear!
The judge in the case is reported to have said that he would have to exercise the “judgment of Solomon” and come up with a third alternative rather than choosing between the two options suggested by the brother and sister. Avoiding that judgment, outside Court the siblings did finally agree on what should happen, having the first part of the service in keeping with the brother’s wishes, followed by the burial and then returning for the second part of the service in accordance with the sister’s views.
Both clearly thought that they were pursing what their mother would have wanted. This case clearly shows how important it can be to make sure that your loved ones know what you actually want for your funeral and to happen to your remains. Here is my advice as to how to avoid these sorts of disputes.
So who has the final say in deciding what happens to your body? The legal position, broadly, is that no one “owns” the deceased’s body. However, certain categories of people have the right to dispose of it and therefore to possess it for that purpose. These include the executors named in a Will, the owner of the property in which the person died and the local authority.
No one category has priority over another to dispose of the body which means that more than one person can have the responsibility of disposing of it. Perhaps surprisingly, however, the next of kin does not have the right to dispose of the body, unless he or she comes within one of the other categories of people who do have that right. You may want to bear this in mind when choosing your executors.
Clarify your wishes in writing
If you have made a Will, you may have included some funeral wishes within that. For most, this is limited to a wish to be cremated or buried. But just because your executors have the right to dispose of your body, it doesn’t mean that they are bound by your Will as far as your funeral wishes are concerned. Those wishes are just that: wishes. They are not legally binding and you should be aware that they may not be followed.
It is not unknown for executors to stray from the wishes set out in a Will. From a practical point of view, it is also worth bearing in mind that your Will may not be looked at until after your funeral, at which point following your wishes could be impossible. You may have fully set out what you would like to happen, but if that information is not seen in time then your wishes are unlikely to be followed.
That is not to say that it is not a good idea to write your wishes down. Often it can be difficult to talk to others about what you want to happen when you die and so it can be a good idea to put your wishes in writing. It also means that your friends and family have a tangible piece of paper to refer to rather than a hazy memory of a conversation that you had many years before.
If you do this make sure your friends and family know that you’ve written your wishes down and know where to find that piece of paper; perhaps you’ll store with your important papers, or give a copy to your spouse or children. Alternatively there are several online services now available which you can use to do everything from express whether you wish to be cremated to writing messages to be emailed out to others after you have died.
Communication is key
If you feel able to talk about such matters with your family or friends then do so. That will give you all the opportunity to have a discussion about what should happen and it may be that they ask questions or raise points which you have not considered. Be open about what you want, as you will not get the chance to say these things to your family after your death. Afterwards, think about making a note of your conversation to confirm what you have decided which can be referred to in the future. This can also help avoid disagreements arising after your death, as unfortunately occurred between Mrs Freud’s children.
Many people are now putting their own funeral plans in place rather than leaving all of the arrangements to those left behind. This means that not only is the majority of the cost of the funeral already covered but that the surviving relatives do not have to worry about what the deceased would have wanted. This is worth considering, especially if you do know what you want and you foresee a dispute. If you do organise your funeral during your lifetime you will not be alone: the Queen’s funeral has already been meticulously planned and coverage of it is regularly rehearsed by the BBC!
Even with the best laid plans, disputes can arise when someone dies as this is a difficult time for family and friends. If that does happen, the disagreeing parties should try to come to a compromise. Ultimately, if the parties cannot agree they may have to take their dispute to the Court for a decision, but, as Mr Justice Arnold made clear, it may be that the Court cannot choose the option favoured by one side or another and instead has to order a third solution which is not really what either party wants. A Court case is likely to be very distressing for the family and potentially costly too, so best avoided if possible.
Timing can be crucial
It is often easier to talk about death when it is not an immediate concern. If you are reviewing your Will, that could be a good opportunity to bring up the subject with your family. If you are able to spend a little bit of time now thinking about your wishes, discussing these with your family and recording them in writing or online then you could save your loved ones a lot of additional worry after your death.
You may also like Do a Bowie, Direct Cremation Instead of a Funeral, “I Want Balloons” Planning Mom’s Funeral with Mom, What To Do When Someone Dies and Making a Will. Got One Yet?
Harriet Betteridge joined Stevens & Bolton in September 2015 having trained at B P Collins and is a member of the private client team. Harriet advises on UK tax and trust matters with a focus on Wills and inheritance tax planning, powers of attorney, and probate and estate administration. She also has experience in dealing with applications to the Court of Protection.