BBC Essex – Not being able to say a proper goodbye

6 Feb 2020 | Stephanie Prior

On Breakfast with Ben & Sonia, on BBC Radio Essex, they spoke to a relative of Stephen Drummond. Mr Drummond’s remains are still being kept in an Essex hospital morgue as a family dispute continues regarding what should happen to his body. The family are divided about whether he should be buried or cremated.

Stephanie Prior, Head of our Clinical Negligence Department was invited to comment on the case.

“The Coroner cannot release the body. Mr Drummond’s body cannot form part of a person’s estate and beneficiaries of the estate cannot claim any rights over the body and if the family cannot come to an agreement then an application will have to be made to the High Court to resolve the dispute which causes more distress for the family.  Hopefully, the family will be able to come to an agreement so that Stephen can be laid to rest.”

No property in a corpse

No one owns a deceased body. The deceased’s body cannot, therefore, form part of a person’s estate and beneficiaries of the estate cannot claim any rights over the body.

Although no one can own the deceased’s body, certain people have the right to possess it. A person who is responsible for disposing of the body has the right to possess it in order to do so. In this case, the right to possession is only for the purpose of disposing of it.

Disposal of a body

The following people are responsible for disposing of a body:

  • The personal representatives. If the deceased leaves a will, the executors are responsible for disposing of the body. If the deceased dies intestate, or his will does not appoint executors, the administrators of the deceased’s estate have this responsibility. An executor’s authority derives from the will, while an administrator derives authority to administer the estate by obtaining a grant of representation (relevant for your case).
  • The parents of a deceased child.
  • A householder in whose premises the body lies e.g. a hospital authority.
  • The local authority for the area in which the body was found (if no other arrangements are made)

As there is no order of priority for responsibility, more than one person may be responsible but in your case it would be the personal representatives. So has a Grant been obtained? If so, the administrator has the legal right to deal with the body and funeral.

On the other hand, if the corner won’t release the body without some sort of agreement/court order then the family have no option but to make an application to the High Court to resolve the dispute.

A case called Hartshorne v Gardner sets out the factors the court will consider where those who have responsibility for disposing of the body can’t agree on how to do so. In this case, it was the deceased’s parents who could not agree. The mother wanted the body to be buried in the town where she lived and where the deceased had grown up. The father however, wanted the body to be buried in the town where the deceased had since made his home and where his brother and fiancée lived. As there was no will (and so no executor), both parents were equally entitled to apply to administer the estate.

The court’s overriding concern was that the body should be disposed of with proper respect and dignity. The court therefore considered the following factors in deciding where the deceased should be buried:

  • The deceased’s wishes.
  • The wishes of family and friends.
  • The place the deceased was most closely connected with.
  • For example, in an Australian case the judge said that there was no good reason for the body to be flown thousands of miles away rather than having the funeral where it lay.

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