Why it's important to make your wishes clear: funeral and burial disputes

Written by Danni Brannon, solicitor and Elliot Booth, trainee solicitor in the Will, Trust and Estate Disputes team at Irwin Mitchell

The ashes of Hollywood actress, Zsa Zsa Gabor, were buried last week, five years after her death in 2016. Ms Gabor expressed a wish in her will that her ashes were laid to rest in her native Hungary. Her flamboyance in life lived on after her death, all the way to the cemetery in Budapest; the urn containing her ashes travelled in its own seat on a first class flight from Los Angeles, complete with champagne and caviar.

Most of us will have conversations with our loved ones about what we want to happen to our bodies after we die. Our preferences are sometimes deeply personal to us, so it is only reasonable to expect our wishes to be followed. The thought of our families arguing over our funeral and burial arrangements after we are gone is, for many of us, uncomfortable and distressing.

In England and Wales, the person (or people) responsible for arranging our funerals and dealing with our burial or cremation is the personal representative of our estate. If you have left a will, you will have named an “executor”. If you die without a will, the personal representative is called an “administrator” and is usually a close family member, such as your spouse/civil partner or your children.

This means that if there is any disagreement about your funeral between family members, the final decision is always made by the personal representatives. This might make you feel slightly uneasy, especially if you have named a non-family member (such as your solicitor) to act as your executor. The good news is that you can make an expression of wishes in your will, such as whether you want to be buried or cremated, or where you would like your final resting place to be, which will help your personal representatives understand and follow your wishes.

However, it is important to add that an expression of wish in a will is not binding. That means your family cannot ask the Court to step in and override what the personal representative wants to do, unless they have acted unreasonably or it is in the public interest to do so. A case from 2016 offers some relief however, as in Re JS (Disposal of Body) [2016] EWHC 2859 Fam the Court ruled that expressions of wish should be taken into account by personal representatives. Therefore, having a clear expression of wishes in place will minimise the risk of a dispute arising after you are gone.

As more of us opt for cremation over burial, disputes over ashes are likely to become increasingly common, and these bring their own unique challenges. Ashes are unique, in that they can be divided between family members, which can add a whole new layer of intricacy to what can already be a complex situation. The current legal position is that the process of cremation allows the ashes be held on trust by the personal representatives for other family members. The law is still developing in this area.

It is highly unlikely that Zsa Zsa Gabor’s family would have given her the international send-off she wanted if she hadn’t made her wishes clear in her will. This highlights the importance of having these conversations with your loved ones now, and making sure that you have a will in place that clearly reflects your wishes about what you want to happen to your body after you die.

Von Anhalt said he carried an urn with three-quarters of Gabor’s ashes to London, then to Germany and from there to Budapest, using a window of opportunity as border closures due to the coronavirus pandemic eased.”