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Original Articles

Burial Instructions and the Governance of Death

Heather ConwaySchool of Law, Queen's University Belfast. Earlier versions of this article were presented as research papers at Fordham University, New York, Queen's University Belfast and the University of Manchester. Thanks to all of those who participated, and gave me much to think about before completing the final draft! Thanks also to Stephen White, Research Fellow, Durham University and Visiting Lecturer, Cardiff Law School and to Professor Prue Vines, University of New South Wales for reading and commenting on this article, and for sharing their vast expertise with me.
Pages 59-95 | Published online: 07 May 2015

  • Schloendorff v The Society of the New York Hospital 105 NE 92 (1914) (Cardozo J).
  • Tanya K Hernandez, ‘The Property of Death’ (1999) 60 University of Pittsburgh Law Review 971, 1025.
  • Genesis 47:29–31. I am grateful to my colleague, Dr John Stannard, for bringing this to my attention.
  • The first of its type in Britain in 70 years, although an offence may have been committed. Sam Jones, ‘Police Say Sikh Funeral Pyre May Have Broken Cremation Laws' The Guardian (London, 13 July 2006) <http://www.guardian.co.uk/uk/2006/jul/13/religion.world> accessed 31July 2012.
  • Ghai v Newcastle City Council (Ramgharia Gurdwara Hitchin intervening) [2009] EWCH 978 (Admin). On appeal, the primary issue was whether a structure proposed by Mr Ghai to allow for open-air cremations constituted a permissible ‘building’ for the purposes of the Cremation Act 1902 and Cremation (England and Wales) Regulations 2008, SI 2008 No 2841. See Ghai v Newcastle County Council [2010] EWCA Civ 59.
  • The reference to ‘family’ denotes those persons whom the deceased regarded as such while alive and who were bound to the deceased by means of emotionally significant relationships, even if this does not coincide with the legal definition of next-of-kin.
  • While these are the two most common methods of disposing of the dead, others do exist. See Stephen White, ‘The Law Relating to Dealing with Dead Bodies' (2000) 4 Medical Law International 145, 153–55.
  • Existing burial laws do not deal with this issue, being confined to matters such as permissible methods of disposal, public health issues and registration of deaths and burials. See generally ‘Cremation and Burial’, Halsbury's Laws of England (5th edn, 2010) vol 24.
  • The term ‘burial instructions’ is used in a generic sense throughout this article to denote an individual's directions or requests relating to the disposal of his remains; in this particular context, ‘burial’ is not confined to interment of a corpse in the ground.
  • Pierce v Proprietors of Swan Point Cemetery 10 RI 227, 239 (1872) (Potter J).
  • Thomas Stueve, Mortuary Law (6th edn, Cincinnati Foundation for Mortuary Education 1984) 17.
  • The funeral of Hollywood icon Elizabeth Taylor provides an excellent illustration, the actress instructing that she be 15 minutes late as was her tradition in life. See Jonathan Brown, ‘As a Final Act, Elizabeth Taylor is Late For Her Own Funeral' The Independent (London, 26 March 2011) <http://www.independent.co.uk/news/world/americas/as-a-final-act-elizabeth-taylor-is-late-for-her-own-funeral-2253475.html> accessed 31July 2012. See also the recent funeral of SirJimmy Savile, whose eccentricities in life were mirrored in death. Discussed at text to n 218 below.
  • See eg Holtham v Arnold [1986] 2 BMLR 123; Saleh v Reichert (1993) 104 DLR (4th) 384.
  • For example, an individual who requests a ‘green’ funeral whereby the body is placed in a biodegradable coffin, and either cremated or interred in a woodland burial site. See generally Ken West, A Guide to Natural Burial (Sweet & Maxwell 2010). Of course, a non-mainstream form of disposal must still be legally permissible, unlike that in Ghai [2009] (n 5).
  • However, in some instances, the deceased may want to sever certain ties on death. See Maurer v Thibeault 860 NYS 2d 895 (2008) (wife insisted on being buried separately from her husband due to his persistently violent conduct and alleged threats to kill her).
  • See eg Grandison v Nembhard [1989] 4 BMLR 140.
  • See generally Dewi Rees, Death and Bereavement: The Psychological, Religious and Cultural Interfaces (2nd edn, Whurr Publishers 2001).
  • See eg LAW v Children's Aid Society of the District of Rainy River [2005] OJ No 1446.
  • See Burnes v Richards (6 October 1993, unreported) (NSWSC); Re Lochowiak (Deceased) [1997] SASC 6301; Leeburn v Derndorfer [2004] VSC 172.
  • Invariably where this lifestyle choice met with familial disapproval. See Jennifer E Horan, ‘“When Sleep at Last Has Come”: Controlling the Disposition of Dead Bodies for Same-Sex Couples' (1998-99) 2 Journal of Gender, Race and Justice 423.
  • Williams v Williams (1882) 20 Ch D 659, 665.
  • Dow v Hoskins [2003] VSC 206, [26]. Although a decision of the Supreme Court of Victoria, the basic principle is derived from English law as discussed immediately below.
  • Williams (n 21).
  • In obtaining this licence Miss Williams misrepresented her intentions to the Home Secretary, indicating that she merely intended to move the deceased's body from the unconsecrated part of the cemetery to a different burial ground. At the time, cremation was illegal in Britain.
  • Williams (n 21) 665, reproduced above in the opening quotation to Part C.
  • See eg R v Fox (1841) 2 QB 246; R v Scott (1842) 2 QB 248.
  • (1614) 12 Co Rep 113.
  • See Paul Matthews, ‘Whose Body? People as Property' (1983) 36 Current Legal Problems 193 for an oft-cited and excellent critique of the ‘no-property’ rule. Caselaw misinterpretation aside, the fact that ecclesiastical courts had exclusive jurisdiction over the dead until the nineteenth century also prevented the recognition of property rights in corpses which were outside the cognisance of common law courts. See Marvin I Barish, ‘The Law of Testamentary Disposition—A Legal Barrier to Medical Advance' (1956-57) 30 Temple Law Quarterly 40, 40–41 and the sources cited therein.
  • Mark Pawlowski, ‘Property in Human Body Parts and Products of the Human Body’ (2009) 30 Liverpool Law 35, 37.
  • Despite misgivings over its origins, the Court of Appeal endorsed the rule in Dobson v North Tyneside Area Health Authority [1996] 4 All ER 474; R v Kelly [1998] 3 All ER 741, the latter case suggesting that it could only be undone by Parliament.
  • Since exactly the same principles apply. See Fessi v Whitmore [1999] 1 FLR 767; Robinson v Pinegrove Memorial Park Ltd (5 June 1986, unreported) (NSWSC).
  • Heather Conway, ‘Dead But Not Buried: Bodies, Burial and Family Conflicts’ (2003) 23 Legal Studies 423.
  • Williams (n 21); Grandison (n 16). The executor is entitled to possession of the body even before the grant of probate (Buchanan v Milton [1999] 2 FLR 844), unless there are doubts over the validity of the will (University Hospital Lewisham NHS Trust v Hamuth [2006] EWHC 1609 (Ch)).
  • In English law, civil partners have the same succession law rights as spouses under the Civil Partnership Act 2004.
  • Administration of Estates Act 1925, s 46 (as amended). See also Dobson (n 30); Holtham (n 13).
  • See eg the Canadian cases of Hunter v Hunter (1930) 65 OLR 586; Waldman v Melville (City) (1990) 65 DLR (4th) 154; Saleh (n 13); Sopinka (Litigation Guardian of v Sopinka (2001) 55 OR (3d) 529; the New Zealand cases of Murdoch v Rind & Murdoch [1945] NZLR 425; Awa v Independent News Auckland Ltd [1995] 3 NZLR 701; Clarke v Takamore [2009] NZHC 901. There is a wealth of Australian caselaw on this topic. See eg Robinson (n 31); Burnes (n 19); Smith v Tamworth City Council (1997) 41 NSWLR 680; Jones v Dodd [1999] SASC 125; Manktelow v The Public Trustee [2001] WASC 290; Keller v Keller [2007] VSC 118.
  • However, the position is different in the Canadian province of British Columbia. See text to n 195–98 below.
  • See Sopinka (n 36) and the various cases cited therein.
  • Rosalind F Croucher, ‘Disposing of the Dead: Objectivity, Subjectivity and Identity’ in Ian Freckelton and Kerry Peterson (eds), Disputes and Dilemmas in Health Law (Federation Press 2006) 324, 330–31.
  • A financial incentive might also be included in the deceased's will, if the executor carries out the deceased's burial instructions. Such conditional bequests are valid. See In Re Riegle's Estate 10 Misc 491, 32 NYS 168 (1894).
  • Grandison (n 16).
  • Contrast Grandison (n 16) with Williams (n 21) in which the executor acceded to the wishes of the deceased's wife, as well as Hunter (n 36) in which the deceased's son and executor refused to comply with his father's wish to be buried in a Catholic cemetery despite the father having converted to Catholicism shortly before his death.
  • Under current English law, the fact that cohabitants are not classed as next-of-kin for intestacy purposes would mean that a surviving partner (irrespective of the duration of the relationship) would be denied any say in the fate of the deceased's remains where this was contested, for example, by the deceased's parents or siblings. The position is different in other common law jurisdictions. For example, all Australian jurisdictions now recognise cohabiting or de facto partners as next-of-kin for intestacy purposes. See eg Reece v Little [2009] WASC 30 (de facto partner granted custody of deceased's remains as the legally designated kin under ss 15 and 25 of the Administration Act 1903 (WA) (as amended)).
  • Holtham (n 13).
  • The wife (supported by the couple's children) favoured cremation so that the ashes could be deposited in the same grave as the deceased's parents.
  • See eg Saleh (n 13); Meier v Bell (3 March 1997, unreported) (VSC).
  • From a monetary perspective, pre-paid funeral plans in England and Wales are regulated by the Financial Services Authority and must comply with the Financial Services & Markets Act 2000 (Regulated Activities) Order 2001.
  • Opposing members of the deceased's family would not, presumably, be able to sue on the contract. Aside from issues of standing, it is questionable whether this specific element of the contract could actually be enforced.
  • [2003] NSWSC 1038.
  • Privet (n 49) [12].
  • Since only reasonable expenses are payable from the deceased's estate. See Roger Kerridge and Alastair Brierley, Parry and Clark: The Law of Succession (11th edn, Sweet & Maxwell 2002) 508–11.
  • University Hospital Lewisham NHS Trust (n 33).
  • Unlike the deceased's second ‘wife’ in R (on the application of Haqq) v HM Coroner for Inner West London [2003] EWHC 3366 (Admin) (legally subsisting first marriage, and second marriage not recognised under English law).
  • Kerridge and Brierley (n 51) 393–94, 406–07.
  • Buchanan (n 33). Suggestions to the contrary in Holtham (n 13) must now be regarded as incorrect.
  • [2008] EWHC 1387 (Admin).
  • Since the right to bury an infant or minor falls jointly on the parents (or on the sole surviving parent where one is dead). See R v Gwynedd County Council ex parte B [1992] 3 All ER 317.
  • In reaching this decision, Cranworth J was also influenced by Article 8 of the European Convention on Human Rights. See text to n 125–28 below.
  • [2008] EWHC B3 (Ch).
  • Hartshorne (n 59) [7] citing Grandison (n 16).
  • [2007] WASC 82.
  • Ugle (n 61) [16]. See also Spratt vHayden [2010] WASC 340; Clarke (n 36). The deceased's preferences have also proved influential in the exhumation context. See Re Ormandy, Court of Ecclesiastical Causes Reserved (25 August 2009, unreported).
  • In re Eichner's Estate 18 NYS 2d 573, 573 (1940).
  • Thompson v Deeds 61 NW 842, 843 (Sup 1895).
  • See 22A Am Jur 2d, Dead Bodies, Part II; Percival E Jackson, The Law of Cadavers (2nd edn, Prentice Hall 1950) ch III; Kimberly E Naguit, ‘Letting the Dead Bury the Dead: Missouri's Right of Sepulcher Addresses the Modern Decedent's Wishes’ (2010) 75 Missouri Law Review 248. See also the various cases referenced throughout this section.
  • Ralph C Brashier, ‘Disinheritance and the Modern Family’ (1994) 45 Case Western Reserve Law Review 83, 133.
  • SeeJackson (n 65) 25–28; Tracie M Kester, ‘Uniform Acts—Can the Dead Hand Control the Dead Body? The Case for Uniform Bodily Remains Law' (2006–2007) 29 Western New England Law Review 571, 573–76. The same sources also note the historical absence of ecclesiastical courts in the United States as another important factor.
  • Barish (n 28) 40.
  • Pierce (n 10).
  • Pierce (n 10) 242–43.
  • See eg Larson v Cha.se 47 Minn 307 (1891); Pettigrew v Pettigrew 56 A 878 (Pa 1904); Literal v Literal 131 Mo App 306 (1908); Floyd v Atlantic Coast Line Ry Co 167 NC 55, 83 SE 12 (1914).
  • Any rights which exist are for burial purposes only. American courts have consistently stressed that there is no property in a corpse in any commercial or general sense. See eg Goldman v Mollen 168 Va 354 (1936); In re Shipley's Estate 53 Erie CLJ 6 (1970); Massey v Duke University 503 SE 2d 155 (1998).
  • The views of an executor may be given little weight ‘because there is no necessary identity between the office and family ties'. See Wales v Wales 190 A 109, 110 (1936).
  • Pierce (n 10).
  • 86 Misc 292, 293–94 (1914).
  • Similar views were expressed in Wales (n 73); reEichner's (n 63).
  • Kester (n 67) 576 citing Newman v Sathyavaglswaran 287 F3d 786 (9th Cir 2002).
  • 6 9 7 So 2d 220 (1997).
  • To similar effect is the decision in re Eichner's (n 63). See also Tkaczyk v Gallagher 26 Conn Supp 290 (1965) (deceased's parents opposed cremation on religious grounds, but failed to secure an injunction preventing the deceased's husband from cremating his wife in accordance with her wishes).
  • 821 So 2d 169 (2001).
  • American courts have emphasised the deceased's preferences when determining petitions for exhumation. See Peter Zablotsky, ‘“Curst Be He That Moves My Bones”: The Surprisingly Controlling Role of Religion in Equitable Disinterment Decisions' (2007) 83 North Dakota Law Review 361.
  • See eg Fidelity Union Trust Co v Heller 16 NJ Super 285 (1951); Guerin v Cassidy 38 NJ Super 454 (1955); Matter of Moyer's Estate 577 P 2d 108 (1978) 110; In re Estate of Medien 286 1ll App 3d 860 (1997).
  • Thus burial instructions contained in a will do not need to be probated in order to be carried out, and need not comply with revocation of wills formalities if the individual changes their mind. See Hernández (n 2) 1020–21. While burial instructions could still be valid where a will fails for want of compliance with technical formalities, the position may be different where it fails on grounds of mental capacity. See Rosenblum v New Mount Sinai Cemetery Association 481 SW 2D 593 (1972).
  • See eg Fidelity Union Trust (n 82) (deceased's wishes ascertained from various documents indicating detailed plans to erect a mausoleum in a particular cemetery). Another option might be preferences contained in a pre-paid funeral contract. See Frances H Foster, ‘Individualized Justice in Disputes over Dead Bodies’ (2008) 61 Vanderbilt Law Review 1351, 1377–78.
  • See Wales (n 73). The validity of written or oral directions is determined by ordinary rules of evidence (Leschey v Keschey 374 Pa 350 (1953)).
  • 14 NYS 2d 946 (1936).
  • However, the fact that the deceased had changed her mind as regards burial did not invalidate the remainder of the will. For a more recent illustration of oral directions taking precedence, see Cohen v Guardianship of Cohen 896 So 2d 950 (2005); Arthur vMilstein 949 So 2d 1163 (2007). The latter case centred on the remains of former Playboy model, Anna Nicole Smith, the court basing its decision on oral statements suggesting that the deceased wanted to be buried in the Bahamas beside her son who had died six months earlier.
  • Personal representatives may petition the court for instructions, in the event of a conflict between the deceased's wishes and those of family members. See reEichner's (n 63).
  • Cohen (n 87) (wife's decision challenged by deceased's siblings).
  • See Stewart v Schwartz Brothers-Jeffer Memorial Chapel 606 NYS 2d 965 (1993); Pittman v Magic City Memorial Co Inc 985 So 2d 156 (2008).
  • See eg the statutes listed in Ray D Madoff, Immortality and the Law: The Rising Power of the American Dead (Yale University Press 2010) 18.
  • This ranking is based largely on intestacy rules and varies across the different statutes. For example, while domestic partners and surviving spouses have equal rights under some statutes, others look beyond the stereotypical family model to include those who were bound to the deceased in life by ties of love and affection. For a general overview, see Kester (n 67) 576–80; Naguit (n 65) 253–58; Ann M Murphy, ‘Please Don't Bury Me Down In That Cold Cold Ground: The Need for Uniform Laws on the Disposition of Human Remains' (2007) 15 Elder Law Journal 381, 403–07.
  • 300 NJ Super 424 (1997).
  • See also Sherman v Sherman NJ Super Ch 638 (1999); Caseres v Ferrer 774 NYS 2d 372 (2004); Maurer (n 15).
  • ‘The general rule is that although… legal compulsion may not attach to them, the wishes or directions of a decedent as to his interment… have been allowed great weight’. See Fidelity Union Trust (n 82) 290 (Freund SJC).
  • 13 Cal App 2d 449 (1936).
  • Henderson's (n 96) 454–55.
  • Kirsten Smolensky, ‘Rights of the Dead’ (2009) 37 Hofstra Law Review 763, 765.
  • Barish (n 28) 46.
  • ckson (n 65) 42–3; Hernández (n 2) 981–82.
  • Eloisa Rodriguez-Dod, ‘Ashes to Ashes: Comparative Law Regarding Survivors' Disputes Concerning Cremation and Cremated Remains’ (2008) 17 Transnational Law and Contemporary Legal Problems 311, 323–28.
  • See text to n 26–38 above.
  • See text to n 31–35 above.
  • Of course, self-determination in the will-making context can be tempered by the interests of the deceased's family in certain circumstances. See text to n 164–67 below.
  • Hernández (n 2) 976 and the sources cited therein.
  • Daniel Sperling, Posthumous Interests: Legal and Ethical Perspectives (CUP 2008) 152–53. See also Margaret Brazier, ‘Retained Organs: Ethics and Humanity' (2002) 22 Legal Studies 550, 561–65.
  • See Jonathan Herring (ed), Medical Law and Ethics (3rd edn, OUP 2010) 192–200 and the various sources cited therein; Sheila AM McClean, Autonomy, Consent and the Law (Routledge-Cavendish 2010). For an alternative view, see Charles Foster, Choosing Life, Choosing Death: The Tyranny of Autonomy in Medical Law and Ethics (Hart Publishing 2009).
  • R (Burke) v GMC [2005] EWCA 1003, [31].
  • John Harris, ‘Law and Regulation of Retained Organs: The Ethical Issues’ (2002) 22 Legal Studies 527, 532–34 and the various authorities cited therein.
  • See text to n 154–59 below.
  • Glennys Howarth, Death and Dying: A Sociological Introduction (Polity 2007) 40–68.
  • See eg Herring (n 107) 203–05; Alasdair Maclean, ‘Advance Directives, Future Selves and Decision-Making’ (2006) 14 Medical Law and Ethics 291.
  • See eg Belinda Bennett, ‘Posthumous Reproduction and the Meaning of Autonomy’ (1999) 23 Melbourne University Law Review 286.
  • See generally Shaun D Pattinson, Medical Law and Ethics (Sweet & Maxwell 2006) 418–40 and the various sources cited therein.
  • See eg Mary Ford, ‘The Personhood Interest and Paradox and the Right to Die’ (2005) 13 Medical Law Review 80.
  • Sperling (n 106) 169.
  • Michelle Bourianoff Bray, ‘Personalizing Property: Towards a Property Right in Human Bodies’ (1990) 69 Texas Law Review 209, 244.
  • Conway (n 32) 442–49.
  • As well as concerns about using constitutional provisions as the genesis of private law rights.
  • For example, directions to ‘bury me in the family plot in the local cemetery' or ‘cremate my remains and scatter my ashes in the Lake District.’ Directions based on religious or cultural beliefs would be more likely to fall within Article 9 of the Convention.
  • (1981) 24 D & R 137.
  • A number of other cases have also recognised that issues surrounding burial fall within the scope of this provision. See eg Ploski v Poland App no 26761/95 (ECtHR, 12 November 2002); Pannullo and Forte v France (2003) 36 EHRR 42; Dodsbo v Sweden (2007) 45 EHRR 22 (discussed below); Girard v France App no 22590/04 (ECtHR, 30 June 2011). See also Esfandiari v Secretary of State for Work and Pensions [2006] EWCA Civ 282.
  • Pretty v United Kingdom (2002) 35 EHRR 1. However, Article 8(1) ‘does not confer any general rights of autonomy or self-determination’. See Ghai [2009] (n 5) [129].
  • Ghai [2009] (n 5) [141]. The claimant ultimately failed to establish a breach of Article 8 for reasons discussed below.
  • Burrows (n 56).
  • Burrows (n 56) [20], citing X v Federal Republic (n 121); Dodsbo (n 122).
  • Burrows (n 56) [26].
  • This weighing up of potential entitlements under Article 8 has been considered elsewhere. See Scotching v Birch [2008] EWHC 844 (Ch).
  • For example, a request to be buried in a particular cemetery might be defeated on the basis that the cemetery is full, while directions to ‘burn my corpse in the middle of a forest in front of my family and friends' might be construed as contrary to public health and morality, as well as infringing existing cremation laws and raising fire safety concerns.
  • See Ghai [2009] (n 5) (refusal of the claimant's request to be cremated on an open-air funeral pyre did not infringe Article 8(1) because the public nature of the activity justified state interference under Article 8(2)).
  • Dodsbo (n 122).
  • Dodsbo (n 122) [20].
  • For example, where the deceased is a devout Catholic and specifies that they wish to be buried with attendant funeral rites, or where the deceased is of Aboriginal descent and wants to be buried in a manner which respects their spiritual and cultural traditions.
  • [2000] Fam 33.
  • Durrington (n 134) 36. See also Re Crawley Green Road Cemetery [2001] 2 WLR 1175. Reliance on Article 9(1) rights in this case was criticised in Re Blagdon Cemetery [2002] 3 WLR 603.
  • See generally Carolyn Evans, Freedom of Religion under the European Convention on Human Rights (OUP 2001).
  • See the respective judgments of the House of Lords in R (Williamson) v Secretary of Statefor Employment and Education [2005] 2 AC 246; R (on the application of Begum) v Denbigh High School [2007] 1 AC 100.
  • Since the term ‘practice’ does not cover each act which is motivated by a religion or belief. See Arrowsmith v UK (1978) 3 EHRR 118; Pretty (n 123). See also Jones v UK (Application no 42369/04. 13 September 2005) in which it was held that a local council's refusal to allow the applicant to place a headstone incorporating a photograph of his daughter on her grave did not infringe the applicant's religious beliefs under Article 9(1) since the refusal could not be regarded as preventing any manifestation of those beliefs.
  • Ghai [2009] (n 5). For a critique, see Peter Cumper and Tom Lewis, ‘Last Rites and Human Rights: Funeral Pyres and Religious Freedoms in the United Kingdom' (2010) 12 Ecclesiastical Law Journal 131. The Article 9 arguments were not raised on appeal because Ghai agreed that a different structure could be built for Hindu cremations which would comply with existing cremation laws (Ghai [2010] (n 5)).
  • Most notably the Cremation (England and Wales) Regulations 2008, SI 2008 No 2841.
  • Ghai [2009] (n 5) [83].
  • Applying the core tests laid down in Williamson (n 137).
  • Though this did not prevent the claimant's own beliefs on the matter from falling within the scope of Article 9(1). See Ghai [2009] (n 5) [100]—[01].
  • Ghai [2009] (n 5) [12]-[14].
  • For example, the House of Lords in R (Pretty) vDPP [2002] 1 AC 800 suggested that Article 8 rights only apply while the individual is alive, though the European Court of Human Rights in the subsequent decision in Pretty (n 123) did not accept that Article 8 has no relevance to the manner of leaving life. The following comments were also made in Jones (n 138): ‘[T]he exercise of Article 8 rights of family and private life pertain, predominantly, to relationships between living human beings. While it is not excluded that respect for family and private life extends to certain situations after death… there is no right as such to obtain any particular mode of funeral or attendant burial features.’ However, this aspect of Jones was criticised by Cranston J in Ghai [2009] (n 5) [140].
  • See eg Pannullo (n 122); Ploski (n 122); Re Durrington Cemetery (n 134).
  • See text to n 160–85 below.
  • Burrows (n 56).
  • For a detailed account of what typically drives such disputes and their legal resolution see Heather Conway and John Stannard, ‘The Honours of Hades: Death, Emotion and the Law of Burial Disputes' (2011) 34 University of New South Wales Law Journal 860.
  • See eg Murdoch (n 36) 426; Buchanan (n 33) 854; Keller (n 36) [15].
  • Naguit (n 65) 269.
  • 1 Bl Comm 10–11, cited in Ronald Chester, From Here to Eternity? Property and the Dead Hand (Vanderplas 2007) 29.
  • Hernández (n 2) 1026.
  • Harris (n 109) 531.
  • See text to n 111–14 above.
  • Of course, there are issues surrounding the potential enforcement of any legal rights enjoyed by the dead. See text to n 212–15 below.
  • Smolensky (n 98) 764.
  • Smolensky (n 98) 764.
  • Sperling (n 106) 149. See also Sheelagh McGuinness and Margaret Brazier, ‘Respecting the Living Means Respecting the Dead Too' (2008) 28 Oxford Journal of Legal Studies 297.
  • Murray Bowen, ‘Family Reaction to Death’ in Froma Walsh and Monica McGoldrick (eds), Living beyond Loss: Death in the Family (WW Norton and Co 1991).
  • Undated, and cited In Peter Jupp, ‘Religious Perspectives on the Afterlife: Origin, Development and Funeral Rituals in the Christian Tradition' in Belinda Brooks-Gordon and others (eds), Death Rites and Rights (Hart Publishing 2007) 102.
  • Hernásndez (n 2) 991.
  • Richard Ely, ‘The Inheritance of Property’ (1891) 153 North American Review 54, 58.
  • The Inheritance (Provision for Family and Dependants) Act 1975 is the governing legislation in England and Wales. See generally Richard Oughton, Tyler's Family Provision (3rd edn, Butterworths 1998). For comparative perspectives, see Rosalind Atherton and Prue Vines, Australian Succession Law Commentary and Materials (Butterworths 1996); Cameron Harvey, The Law of Dependants' Relief in Canada (Thomson Carswell 2006).
  • Gareth Miller, The Machinery of Succession (Professional Books Limited 1977) 6.
  • Hernández (n 2) 974.
  • Oughton (n 164) 45.
  • See generally David Price, Legal and Ethical Aspects of Organ Transplantation (CUP 2000).
  • See the respective discussions in Herring (n 107) ch 8; Pattinson (n 114) ch 13.
  • The 2004 Act repeals the Human Tissue Act 1961. See generally David Price, ‘The Human Tissue Act 2004' (2005) 68 Modern Law Review 798.
  • Consent can be written or oral under s 3, so long as it was ‘in force immediately before [the deceased] died’. Human Tissue Act 2004, s 3(6) (HTA 2004).
  • A nominated representative can only give or withhold consent if no prior decision was made by the deceased: HTA 2004 (n 171) s 3(6). See HTA 2004 (n 171) s 4 for the appointment of such persons. If no nominated representative was appointed, qualifying relatives can then give or withhold consent on the deceased's behalf (see HTA 2004 (n 171) s 3(6)). For a listing of such relationships see HTA 2004 (n 171) s 27(4).
  • Herring (n 107) 429. See also Pattinson (n 114) 436 (under the 2004 Act, ‘the wishes of the deceased take precedence’).
  • Human Tissue Act 1961, s 1(1).
  • Pattinson (n 114) 434. See also Katherine O'Donovan and Roy Gilbar, ‘The Loved Ones: Families, Intimates and Patient Autonomy' (2003) 23 Legal Studies 332, 339–44 and the sources cited therein.
  • Gillian Haddow, ‘The Phenomenology of Death, Embodiment and Organ Transplantation’ (2005) 27 Sociology of Health and Illness 92.
  • Human Tissue Authority, Code of Practice 2: Donation of Solid Organs for Transplantation (September 2009) <http://www.hta.gov.uk/legislationpoliciesandcodesofpractice/codesofpractice/code2donationoforgans.cfm?FaArea1=customwidgets.content_view_1&cit_id=674&cit_parent_cit_id=669 accessed 31July 2012.
  • Code of Practice (n 177) paras 98–99.
  • Code of Practice (n 177) para 100.
  • Foster, Choosing Life (n 107) 179.
  • See text to n 104–17 above.
  • Horan (n 20) 459.
  • Unless, perhaps, there are allegations of duress or undue influence affecting the deceased's burial instructions. See text to n 225–33 below.
  • See text to n 105 above.
  • Of course, the argument can be made here that if the bereaved would seek solace in following the deceased's instructions, they need not usually be compelled to do so; and if they must be compelled do so, they are unlikely to find solace in acting in such a manner.
  • The American approach has been criticised on this basis. See Lynden Griggs and Ken Mackie, ‘Burial Rights: The Contemporary Australian Position' (2007) 7 Journal of Law and Medicine 404, 408–09.
  • Kester (n 67) 593.
  • Horan (n 20) 438.
  • Miles Kington, How Should I Tell the Dog? (Profile Books 2008) 90.
  • See text to n 208–12 below.
  • Scotching (n 128) [7] (Patten J). See also Privet (n 49) [17] (Bryson J) (‘it is not within the power of the court to control the means of disposition’).
  • See text to n 102–03 above.
  • See ‘Organ Donation’ <http://www.organdonation.nhs.uk/ukt/> accessed 31 July 2012.
  • Particularly in the will-making context. See Alun Humphrey et al, ‘Inheritance and the Family: Attitudes to Will-Making and Intestacy' (National Centre for Social Research, August 2010) 13.
  • See text to n 91–94 above.
  • Cremation, Interment and Funeral Services Act 2004 (British Columbia) s 5(5)(c) (CIFSA 2004). These are simply one factor to be taken into account according to Kartsonas v Stamoulos [2010] BCCA 336. Other factors which the court must consider are the feelings of those related to or associated with the deceased (especially the spouse), the religious practices surrounding burial held by people of the same religious faith as the deceased, and whether the dispute involves family hostility or a capricious change of mind. See CIFSA 2004 (n 196) ss 5(5)(a), (b) and (d).
  • Kartsonas (n 196). In this case the deceased's will had failed to specify that he wanted a non-religious funeral, simply appointing his niece as executor and entrusting the arrangements to her. Notwithstanding the niece's arguments for a non-religious ceremony in accordance with what she alleged were the deceased's atheist views and her rights as executor, the court held that the deceased's estranged children (all of whom favoured a Greek Orthodox burial) should have decision-making authority under CIFSA 2004 (n 196) s 5.
  • CIFSA 2004 (n 196) s 2 places a statutory responsibility on funeral providers to ensure that any services accord with the provisions of the Act.
  • Children who die before reaching the age of majority lack legal decision-making capacity, and will not normally have made their burial wishes known (though see Burrows (n 56)).
  • (18 7 0) LR 5 QB 549.
  • However, where a will fails through lack of mental capacity or there were questions surrounding the capacity of the deceased in general, this may cast doubts over the validity of any burial instructions. See text to n 229–30 below.
  • In other words, for non-compliance with the formal requirements set out in the Wills Act 1832 in England and Wales (and equivalent statutory provisions in other jurisdictions).
  • See text to n 82–83 above.
  • Recent estimates suggest that around one-third of adults in England and Wales have made a will. See Humphrey et al (n 194) 13.
  • It has been suggested that courts should be even more determined to uphold directions set out in a pre-paid funeral plan because the deceased has paid for everything in advance. See Foster Individualised Justice (n 84) 1377–78 and the sources cited therein.
  • Cohen (n 87) 955. See also Hernández (n 2) 1032–33, though the author suggests that courts in the United States will occasionally go further and consider the deceased's acts, state of mind, religious beliefs, and feelings for family members as a means of ascertaining his views on burial.
  • Working on the assumption that the appointment of an executor serves as a form of ‘surrogate autonomy’. See text to n 39 above.
  • For example, under a pre-paid funeral contract or in letters of instruction relating to the funeral.
  • For example, a minimum threshold of 1–2 years could apply in keeping with other situations in which cohabitants have been granted rights under English law.
  • CIFSA 2004 (n 196) s 5(1).
  • In other words, where the deceased had failed to express any views on the matter, or the stated preferences were impermissible. As to the latter, see text to n 216–24 below.
  • ‘If the family gets the body into the ground quickly enough in the manner they wish, there is no legal recourse, and the family may countermand projected desires of the deceased’. See Richard Groll and Donald Kerwin, ‘The Uniform Anatomical Gift Act: Is the Right to a Decent Burial Obsolete?’ (1971) 2 Loyola University of Chicago Law Journal 275, 285.
  • Smolensky (n 98) 799.
  • Such an approach is also contemplated by the British Columbia legislation. See CIFSA 2004 (n 196) s 5(6).
  • See eg the American cases of Tkaczyk (n 79) (cremation permitted, despite objections from the deceased's parents on the basis that it was contrary to their religious beliefs); Kasmer (n 78) (executor opposed the deceased's request to be cremated for reasons of conscience; instructed by the court to comply with this request or else stand aside so that someone else could be appointed as executor).
  • See generally ‘Cremation and Burial’ (n 8).
  • Since funeral costs are paid out of the deceased's estate. See Kerridge and Brierly (n 51) 508–11.
  • See Paul Harris, ‘We Fixed it for Jim: Savile's Gold Coffin Goes on Display in Hotel Bar So Fans Can Say Their Last Goodbyes Ahead of City Tour and Cathedral Farewell’ Daily Mail (London, 9 November 2011) <http://www.dailymail.co.uk/news/article-2058879/Jimmy-Savile-coffin-display-Leeds-hotel-ahead-funeral-fans-say-goodbye.html> accessed 31 July 2012.
  • Contrast, for example, a request for a ‘green’ funeral with one for a Tibet style sky burial. Whereas the body is not embalmed, but is either wrapped in natural fibres or placed in a simple wooden coffin, the ultimate means of disposal under the former method is still interment in the ground and directions to this effect would generally be permissible. A Tibet style sky burial is probably more environmentally friendly (there is no coffin or burial space), yet would probably be impermissible on grounds of public policy.
  • 6 3 Pa D & C 2d 371 (1974).
  • Moyer's Estate (n 82) 110.
  • Moyer's Estate (n 82) 110.
  • As stipulated in reEichner's (n 63) 574.
  • CIFSA 2004 (n 196) s 6(c).
  • Rosenblum (n 83).
  • See also Hunter (n 36) in which the deceased's wishes were ignored, partly due to concerns over his mental state shortly before his death.
  • University Hospital Lewisham NHS Trust (n 33).
  • The deceased's will had instructed his executor (a nurse in the nursing home where the deceased had resided before his death) to cremate his remains. This was opposed by members of the deceased's family who wanted to inter his body in the family burial plot. See also Privet (n 49) [12].
  • Cottingham (n 80).
  • Barish (n 28) 41.
  • See eg Ray D Madoff, ‘Unmasking Undue Influence’ (1997) 81 Minnesota Law Review 571, 576 (‘the undue influence doctrine denies freedom of testation for people who deviate from judicially imposed testamentary norms'); Frances H Foster, ‘The Family Paradigm of Inheritance Law’ (2001–2002) 80 North Carolina Law Review 199, 211 (wills which exclude the deceased's next-of- kin raise ‘judicial red flags' and are more susceptible to defeat on grounds of undue influence or lack of mental capacity).
  • Hernández (n 2) 986–88.
  • As well as duress and undue influence (and lack of mental capacity) in the will-making process, there is the family provision jurisdiction. See text to n 164–67 above.
  • Moyer's Estate (n 82) 110 (Crockett J).
  • Jackson (n 65) 32.

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