Funeral Provisions.

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 executors.

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 this day.

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 the letter. 

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 alternatives.

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 mother’s wishes.

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.


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