Calls for registration of burial wishes intensify following Richard III ruling

Posted: 03/06/2014

The High Court was recently asked to decide whether the remains of Richard III, which had been discovered under a car park in Leicester, should be kept in Leicester Cathedral or moved to York. Distant relatives of King Richard III had asked the court to rule that the remains should be moved to York, where King Richard III is believed to have spent much of his childhood and adult life. The court decided that the remains should stay in Leicester, because there was no evidence that he had expressed any burial wishes.

The decision has led to calls for burial wishes to be recorded on a register, and for wishes kept on the register to be legally binding.

As matters stand, the persons responsible for disposing of a body are:

• The personal representatives.
• The parents of a deceased child.
• A householder in whose premises the body lies (including a hospital authority).
• The local authority for the area in which the body was found (if no other arrangements are made).

There is no order of priority for responsibility, and as such more than one person may be responsible. Contrary to what many might believe, the next of kin does not have a right or responsibility to dispose of the deceased's body unless they are appointed as an executor or administrator.

Personal representatives may give consideration to a deceased’s wishes for their burial, but they are not obliged to give effect to them. This can lead to conflicts. For example, in the case of Hartshorne v Gardner [2008] EWCH B3 (Ch) the deceased left no will, and his parents disagreed as to where he should be buried. The parents were equally entitled to administer the estate, and therefore the court was asked to determine where the deceased should be buried. The court considered the most important factor to be disposing of the body with proper respect and dignity. The court went on to consider the following factors:

• The deceased's wishes.
• The wishes of family and friends.
• The place the deceased was most closely connected with.
• Practicalities.

In cases where there is no record of the deceased’s wishes for their burial, it is likely to be more difficult for the personal representatives to decide how to proceed and conflicts are more likely to arise. The Ministry of Justice has given no indication that they would consider implementing a national record of burial wishes, so in the meantime the best advice is to ensure that you have an up to date will which clearly sets out your wishes.

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