Are My Funeral Preferences Binding?

In his latest blog, Trainee Solicitor, Michael Radze-Constable discusses the topic of funeral preferences and what it means for you …

We will often record funeral instructions in a Will that sets out our wishes to be carried out by our loved ones. We naturally hope that these will be followed to the letter, however weird and wonderful our preferences may be. American Jazz musician Lionel Batiste for instance, did not want people looking down at him. His funeral service was conducted with his body stood up, leaning against a lamp post, hands on his walking cane and a hat tipped to one side whilst wearing tinted sunglasses.

However, in English law, “there is no property in a body” … No one owns your body, as your body is not seen as property. Consequently, your body does not form part of your estate. What we may wish to be done with our body is not legally binding or capable of being enforced, but it is still very important to include funeral wishes in your Will so that your wishes are recorded.

Order Of Priority

What happens to our body is governed by the following order of priority:

The Hospital – Your body will be detained by the hospital if there are infections and/or if you have died from a notifiable disease
The Coroner – Your cause of death will be determined if your death was sudden, violent or unnatural . Your body will be released after examination
Your Will – If you have made a Will, your executor will then become entitled to possession of your body
No Will – Intestacy rules will apply. Typically, a surviving spouse, children, parents, or siblings will be entitled to possession
Parents – For children, parents have a duty to arrange a funeral.

Therefore, in summary, executors have the authority to determine what will happen to your body once it is released and, in the absence of a Will, it will be the surviving spouse, children or remoter relatives.

Problems can arise though if someone else instructs and pays for funeral services as the funeral company’s contract is with the person who pays their fees.

The Importance Of A Will

Setting out your wishes in a Will provides your executors with a clear indication as to what you wish to happen. While your wishes are not legally binding, your executor will most likely look at your Will to consider your funeral wishes and preferences. Your executor will also consider the opinions of relatives and points you have made during your lifetime.

Therefore, whilst you cannot control what happens to your body after your death, writing a Will and appointing an executor can certainly help those you leave behind. You could even consider taking out a pre-paid funeral policy as an additional precaution.