The recent decision of Read v Hoarean is a very sad dispute between separated parents about who should have responsibility for deciding the funeral arrangements of their teenage child who died by suicide.
Background
The parents separated in 2015 and, following the divorce, their son was placed with his father permanently with contact to take place with his mother. However, that contact broke down and since 2016 the mother and son had no contact.
The son died in August 2024 without a will, meaning that the law looks to the order of priority under the Non-Contentious Probate Rules to determine who has entitlement to apply for a grant in his estate. He didn’t have much by way of assets but importantly the right to decide burial or cremation arrangements falls to the same person(s).
Here both parents were equally entitled.
The father had already made the funeral arrangements, but the mother did not agree and wished for a different funeral director.
Both parents agreed that their son should be cremated and the particular cemetery at which that should take place. They didn’t agree however as to what should happen to his ashes.
His mother wanted to divide their son’s ashes so that half could be interred in her family’s grave with the other half to be given to the father. His father wanted to scatter all the ashes in Dartmoor, a place he said their son was close to.
Unable to agree and with the mother refusing to allow the release of her son’s body to the funeral director, the father issued proceedings for the Court to decide who should be responsible for the arrangements.
Court
The Court made clear that the overriding consideration is that the body be disposed of with all proper respect and decency and, if possible, without further delay but subject to that the Court will look at evidence as to the deceased’s intentions and the reasonable wishes of family and friends.
A deceased’s wishes are not legally binding. Here the only evidence of any wishes was in a historic suicide note in which the son had said that he wished to be cremated (which was not in dispute).
The Court considered written witness evidence from grandparents and close friends about how he had a ‘deep connection’ with Dartmoor and it was somewhere where he felt ‘at peace’.
The mother was concerned that scattering the ashes meant they’d be ‘lost to the wind’. The father said it was not his son’s wish for the ashes to be divided and that to divide them would be ‘morbid and disrespectful’.
The Court was sympathetic to both parties but ultimately agreed with the father’s proposal.
Burial disputes
Where someone has left a will, the executor is entitled to possession of a body and has a duty to arrange for its disposal.
Where there is intestacy the Non-Contentious Probate Rules set out a hierarchy.
An executor must take into account any wishes expressed by the deceased but is not bound by them (and indeed may not be allowed to implement them).
Although the legal framework may appear straightforward, when there is a bereavement, grief can lead to disagreements which can quickly escalate. The Judge effectively commended the father’s recognition that earlier interaction with his former wife might have averted the dispute over the ashes compounding their loss. Sometimes differences will be irreconcilable but discussions – perhaps with an independent mediator – may help you find a way through that does not involve the additional pain of litigation.
At the end of this year the Law Commission will begin its project looking at who should have the right to make decisions about a body and the funeral, how disputes should be resolved, and who is responsible for making arrangements for a body after death. For more information click here.
Click here to review the judgment.
For further information, please contact:
Paul Hewitt, Partner, Withersworldwide
paul.hewitt@withersworldwide.com
