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Disputes over the practicalities following a death

View profile for Robert Weston
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When a person dies, one of the first questions to be asked is what happens to the body of the Deceased.  In the vast majority of cases a deceased person’s body cannot be owned and so certain categories of people are given the responsibility to dispose of the body. These are the following:

  • Executor or administrator (if they intend to obtain the grant of representation);
  • Parents (if the Deceased  was a child) ;
  • Householder where body lies –this includes a hospital authority; or
  • Local authority where the body is found.

The Deceased’s next of kin are not identified as people owing the duty to dispose of a body. However, they may indirectly fall under one of the categories identified above.

These people or organisations are all considered as equally entitled to dispose of the Deceased’s body, however it is typical that the local authority will avoid intervening where possible.

If more than one person has an equal footing of responsibility, either or both can take up responsibility for disposal. However, it can happen that those taking up responsibility disagree about what to do with the Deceased’s body. The leading case is Hartshorne v Gardener [2008] EWHC 3675 (Ch), where it was held that the court’s decision would be made by considering the Deceased’s wishes, the wishes of family and/or friends, the Deceased’s connection with the area(s) if this is in dispute, and the practicalities of the suggested disposals – for example where the body is being held and the transportation of it to its final destination.

The failure of such a duty is an offence, and we advise you get in touch with a solicitor as soon as a problem arises.

We can assist and advise those who are looking to contest the disposal of a body or have questions concerning their duties, particularly when acting as executors of an estate, and we are happy to provide initial free of charge advice on the telephone and to set a fixed fee for a more detailed response.

Our contentious probate team specialises in all aspects of contentious probate and is consistently ranked in the top tier of The Legal 500. The team is headed up by Robert Weston, who is listed in The Legal 500 as a “leading individual” and was the instructing solicitor for the successful party in the landmark judgment of Walker v Badmin.  Robert, together with Suzanne Lee and Andrew Chandler are all full members of The Association of Contentious Trust and Probate Specialists (ACTAPS) and represent clients both nationwide and abroad in both bringing and defending claims. 

If you have a contentious probate matter which you would like to discuss with a specialist solicitor with a view to instructing mfg Solicitors LLP, please visit https://www.mfgsolicitors.com/site/services-for-me/contentious-probate/  for further information and contact details.

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