Posted on 20 April 2018 by Catherine Murton
Private client solicitors very often develop a strange outlook on life and the things that fascinate us just seem weird to others. So the discussion in our team this month has been about who owns a body. Well I did warn you that we are a strange lot! On the face of it, most people would think that it is the dead person’s ‘possession’ to dispose of as they see fit, but case law has established that actually no-one owns a body. The hours fly by in our office!
This morbid discussion was triggered by a recent case concerning war veteran Paul Morigi . Mr Morigi married Olive during the Second World War but the marriage failed and he moved to America where he married Muriel and had two children. The marriage lasted 60 years before Mr Morigi divorced Muriel and returned to this country, aged 92, to re-marry Olive.
When Mr Morigi passed away, Olive wished him to be buried locally but his daughter obtained an injunction against the executors to prevent the burial as she wanted his body returned to America for burial in the family plot with full military honours. The Judge identified factors to be taken into account including the wishes of the deceased, the wishes of the family and friends and how practical it was to arrange the funeral in the suggested place.
Mr Morigi had purchased a plot in America and his son had been buried there but his plans had changed when he moved back to England. After many arguments from both sides the Judge appealed to the parties to try and reach an amicable settlement and Olive eventually agreed that the burial should take place in America.
The case has prompted calls for the law on burial to be reviewed and clarified as the complexities of modern families mean that there are likely to be more disputes in the coming decades as to where a body should be laid to rest.
Modern DNA testing also enables parentage to be established from remains and there may be situations where potential offspring wish to have access to a body, even decades after death, to establish biological links. This could be important for genetic medical conditions or simply to prove a right to the assets of the deceased under the rules of intestacy. Who has the right to make an application for such access has yet to be decided.
Clear instructions in a Will or in a letter stored with a Will are compelling evidence and may help to reduce disputes but it should be remembered that funeral wishes are just that, wishes, and can be overruled by the executors (or the Court) if they are impossible or impractical or, as in the case of Mr Morigi, if they are disputed by any interested parties.
I often speak to clients about the benefits of talking about funeral arrangements to loved ones. To many it is an off limits subject and, as a result, family and executors are often left with very little clue as to the deceased’s last wishes. As I have said many times before, a good Will not only deals with assets but also takes away the stress of leaving those left behind to make these difficult decisions.
If you would like to discuss any of the matters raised, please call into one of our legal clinics (no appointment is necessary) or give me a call on 01935 389482 or email at firstname.lastname@example.org.
Posted in: Wills