The landscape has changed dramatically. The impact of Covid-19 has led to dramatic change in the way in which funerals and cremations are held. Practices and procedures are very different to those that were adopted only days ago.
Funerals - a thing of the past?
Funeral directors are no longer able to have face to face visits with those organising the funeral. It is all carried out remotely. The organisers are questioned on whether the deceased or any immediate family members or those in close contact had the virus or have been in contact with anyone that has. Documents are still exchanged by post, although the various authorities are slowly becoming familiar with accepting digital versions. The removal of the deceased’s body to the care of the funeral directors is done with extreme caution, wearing appropriate Personal Protective Equipment. Although, the preparation of the deceased can continue in cases where the virus is not present, the National Society of Allied and Independent Funeral Directors (SAIF) advises that for positive cases, bodies should remain in a sealed body bag in a closed coffin.
Limits to the number of mourners and social distancing
Of greatest impact to the general public is that funerals are now only for immediate family. The Deceased Management Advisory Group issued guidance on 24 March 2020 recommending that funeral services consider limiting attendees to members of the immediate family who are not in any of the high-risk categories and are not self-isolating. They define immediate family as being the spouse/partner, parents/carers, brothers/sisters, children and their partners. A number of local authorities have gone further and now impose their own restrictions, many limiting attendees to no more than 10 people.
The funeral itself has changed significantly. There are no church services and funerals can only be at a crematorium or graveside where social distancing applies to all in attendance. No longer can family members or friends travel in a limousine or carry the coffin, attendees must sit apart at a time when they most want to comfort each other.
New guidance is being released daily. The Coronavirus Act 2020 has modified the process of registration of deaths and regulation of cremations.
It is clear that these measures, though crucial in the fight against the virus, can only exacerbate the grief and upset felt by the deceased’s family and friends. As things stand, there remains the ability of the family members, executors and/or friends to direct the funeral arrangements and the method of disposal of the body. However, what happens in the event of disagreements between them?
Who has ownership of the body?
The law is clear; there is no right to ownership of a body, and you cannot dispose of your own body in your Will. The law recognises a right to possess the body for the purpose of arranging burial or cremation. This right lies with the executor(s) in the first instance. If the deceased dies intestate, the order of priority to obtain the Grant and arrange the burial is clearly set out in Section 22 of the Non-Contentious Probate Rules 1987.
However, the Court has held that this hierarchy is subject to the following two stage test:
- Are there any special circumstances which may displace the usual priority to a Grant?
- If yes, is it expedient for the Court to pass over those with a priority?
But what if it is not an issue of who takes priority, but a disagreement between those equally entitled – such as parents?
What the Court suggests
In Hartshorne -v- Gardner  the deceased’s divorced parents could not agree on the arrangements for their son’s funeral, the father wanted the body to be buried in Kington where his son had been living with his fiancé prior to his death, whereas the mother wanted the body to be cremated 40 miles away in Worcester, where she and the father both lived.
The Court provided the following guidance when equally entitled individuals cannot agree; and considered the following factors to be of key importance:
- The deceased’s wishes;
- The wishes of family and friends;
- The place the deceased was most closely connected with; and
- The practicalities of arranging the funeral.
What about cremations?
Cremation presents a further layer of complexity. The Cremation (England and Wales) Regulations 2008 govern the law of cremation. Regulation 15 sets out that the application for cremation may be made by the following:
- An executor of the deceased person; or
- A near relative who is aged over 16. This includes widows, widowers, surviving civil partners, parents, children or other relatives usually residing with the deceased.
The inclusion of a “near relative” by Regulation 15 welcomes a new party to the dispute.
So, what now?
As can be seen, in the ordinary course of events, there is always uncertainty as to who is entitled to direct the funeral arrangements and how the body is to be disposed of. Given the current lockdown, and requirements for social distancing, any decisions could become even more difficult and fractious. Having regard to the anticipated surge in deaths and the concerns over the disposal of contaminated bodies, this may create further problems and distress. Indeed, this is at a time when the Courts are under extreme pressure, not least in having to get to grips with virtual hearings, and have limited time to deal with such disputes; and funeral directors may be unwilling, and perhaps unable, to retain contaminated bodies whilst the parties seek a resolution.
Clearly, the situation is changing on a daily basis. It is a possibility that the Government may implement stricter regulations, directing how bodies are disposed of and/or prevent attendance at funerals. However, until that time, it can be a real challenge to navigate through such disputes, particularly when such stringent social measures exist.
What should be done if a dispute arises?
It is all the more important to have dialogue with loved ones over your desired arrangements whilst you are healthy as this terrible virus can immobilise you so quickly. However, should a dispute arise, I would strongly advocate the use of mediation which can be very effectively dealt with remotely using straight forward IT. These disputes frequently involve historic issues and entrenched views, and long-held grievances between the parties are common. The use of mediation allows these issues to be properly aired in a managed way which can empower the parties to reach a resolution that is often outside of the Court’s powers and certainly far quicker than through litigation.