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Disposing of the dead – the need to modernize our laws

It has long been thought that the laws in England and Wales which govern the disposal of bodies are outdated and in need of modernization. Many of the laws still applicable today have roots in the 19th century and do not reflect societies changing attitudes and advances in science.

There is no property in a dead body – no one can own a dead body.

Currently, the person entitled to possession of a body is the person under a duty to dispose of the body. It would make sense, therefore, that who is entitled to dispose of the body can change over time following someone’s death – i.e. the hospital, the Coroner’s office, the personal representatives or others entitled under the intestacy rules.

Following a cremation, ashes can only be handed over to the person who delivered the body for cremation but there is no definition of “ashes” – does it mean, all of the ashes, some of the ashes, are they in a sense “the body” and therefore cannot be owned?

Currently, the law does not ensure that a person’s own wishes as to how their body is disposed of are carried out. In fact, the only section in someone’s Will that is generally not legally binding is the “funeral wishes”.

It will not come as much of a surprise that disputes amongst families after the death of a loved one often arise around issues such as funeral arrangements and differing views on how to dispose of the body. The process is a very emotive one and a change in the law to recognise the deceased’s own wishes as binding will help to avoid such disagreements.

It could be argued that if there is no property in a dead body then how can the body be gifted or disposed of by a will, bought or sold – yet statute does permit a body to be donated for medicine or science. If you or a loved one does wish to have their body used in this way, arrangements should be made in advance with the chosen educational/research facility. Visit the Human Tissue Authority’s website and find your local/chosen medical school and follow their own procedures.

The Law Commission is currently in the Pre-consultation stage of a review of the laws regarding disposals of a body. They seek to recognize newer methods of disposal besides the traditional cremation and burial, many of which are already being used in other countries.

The current law is piecemeal and complex and as a result of the consultation, the Law Commission may make recommendations as to the need to change laws in this area. This may result in the need for many clients to update their Wills or prepare codicils stipulating their funeral wishes, especially if there is risk of disputes in the family or your own cultures/beliefs stipulate a particular method of disposal.

Please call us if you need any help or advice, 0800 84 94 101.