In a Will – certainly
ones drafted by Mundays, you will often see a clause headed with the lovely
title of ‘Disposal of Body’. This is the paragraph setting out a testators’
funeral wishes. I purposefully used the word
‘wishes’ because what a person requests in their Will is not binding on their
Legal Nugget – Right of Possession
It may surprise you that whilst a person may be
very clear with their executors what they want to happen – such as to be cremated,
this is only an expression of a wish and not an instruction despite it being in
their Will. This is unusual because in
most cases what a testator asks of their executors creates a binding duty. For
example, if a testator states they want their engagement ring to go to their
daughter, the executors are duty bound to do so (in most circumstances). A
failure to do so could see them taken to Court and removed from their role and
found to be personally liable for any loss to that beneficiary.
However, a failure to comply with the cremation
or burial has no such consequences. This position comes from an English case
from the 19th century which established that the body of a deceased
person is not property and cannot be dealt with by the terms of a Will. The duty
to dispose of the body is imposed on the executors (or administrators if the
person did not have a Will) and this duty of ‘proper disposal’ continues to
Bearing the above in
mind, why do we encourage testators to provide their wishes in their Will?
Well, because in my experience I have never had a person’s wishes not being
followed and it provides a massive reassurance to the executors to know that
they are fulfilling the testators’ wishes.
If such wishes are
provided, it is sensible to keep them brief and clear. The testator can provide more details – in
terms of whether they have a funeral package, a burial plot and wishes for any
kind of ceremony within an accompanying letter.
The value of a side
letter means that should a person change their mind about what they want – for
instance if they find a new piece of music which they would want played then
rather than having to amend or even re-write their Will, they can simply update
On some occasions a
testator may feel that a comprehensive clause is required. As someone who tries to be to be
environmentally conscientious I have met clients who feel similarly and we have
drafted such clauses in a way to ensure that the executors consider sustainable
alternatives to burial or cremation and stipulating the criteria for such
I have also seen
extravagant and costly provisions which whilst reflecting what the testator
wanted, can cause significant issues for those dealing with estate. One such
example was where the deceased wanted her body to be buried in the village
where she was born (which was on another continent). I explained that as a
resident in the UK, transporting her body would be an expensive endeavour. She
agreed, but told me with absolute certainty that whilst that may be the case,
her children would be paying. A few years later I dealt with the estate and her
children did indeed spend a considerable sum of their own money to honour their
Although in the above
example this person achieved what they wanted it is worth bearing in mind that
this is not always the case and that sometimes respecting a person’s wishes are
just not possible. When I practiced in London a surprising number of clients
wanted their ashes scattered into the Thames. My advice was always that this
was not something that was lawfully allowed and we couldn’t ask this of their
family in the Will. Whether they got their way in the end – via a clandestine
visit to a London bridge, I will never know.
Another reason that a
person’s wishes may not be possible is if the estate has insufficient funds. In
such cases family and friends may decide to use their own money or on sad
occasions the Local Authority will become involved in what is called a Public
Health Funeral (historically known as a ‘Pauper’s Funeral’).
If friends or family
do end up paying then they are allowed to seek a reimbursement from the estate
if funds do eventually become available. Similarly, funeral costs are an estate
liability that banks can release funds for without a Grant of Probate.
My view is that having
a such a clause in your Will is incredibly useful and reassuring to the
executors and the family. In the immediate aftermath of a person’s death there
is an awful lot to do, as well as the emotional side of grief and loss. For
executors to have a clear guide to what their loved one/friend/client wanted is
a huge benefit. When people don’t have such clauses there is a higher risk of
dissenting views on what the funeral should be like and who should take the lead
in organising it.
As with the previous
notes in this series, if you are thinking about getting a Will then my advice
is to get it professionally drafted by a solicitor. Wills may seem simple
– and there are numerous resources out
there explaining just how easy they are – but the reality of getting a piece of
paper to adequately convey everything you want to achieve for those you leave
behind is a far cry from the tempting offers you will see online.
The contents of this article are intended as guidance for readers. It can be no substitute for specific advice. Consequently we cannot accept responsibility for this information, errors or matters affected by subsequent changes in the law, or the content of any website referred to in this article. © Mundays LLP.