Ashes, Funerals, and Family Conflict

Read v Hoarean [2024] EWHC 3274 (Ch)

There is no right of ownership in a dead body and disputes can, and regularly do, arise over funeral arrangements and the final resting place of the body or ashes of a loved one. These disputes can be particularly fraught when the Deceased was a child and the parents cannot agree.

In Read v Hoarean, the Deceased was 18 years old when he took his own life in 2024. As the Deceased died unmarried, without children, and intestate, the persons with the right to call for his body to arrange the funeral and proper disposal were his parents[1]. His parents were separated and did not enjoy a good relationship, having been involved in protracted and hostile litigation in the family courts when the Deceased was younger. At the time of his death the Deceased was experiencing mental health difficulties and was living in assisted living. He enjoyed a close relationship with his father but had had no direct contact with his mother since 2016.

The parents were agreed as to the location of the funeral and that the Deceased should be cremated but could not agree over the identity of the funeral director or what should happen to the ashes. The father wished the ashes to be scattered on Dartmoor.  The mother wanted the ashes to be divided between the parents so that she could inter her half in her family’s grave. The mother’s position was set out in the judgment:

She said that she could not see why dividing the ashes would be disrespectful, she just simply could not see why, because he was equally part of both of them, and if his ashes were scattered they would be lost to the wind, that she cannot go and say goodbye to her son, so that is why she proposed that there be two ceremonies and that Theo’s ashes be divided equally between the parents so, as she describes, each got what they want.

The father considered that the division of ashes was morbid and disrespectful and it was noted that “he plainly felt very strongly about this”. The father agreed that there should be two funeral services. 

Having reviewed a number of cases, Chief Master Schuman concluded that body disputes are highly fact sensitive, but that in considering the wishes of the Deceased, their family, and friends, and the location with which the Deceased was mostly connected, the overarching principle is that there should be a decent and respectful disposal of the body without undue delay.

Having heard evidence from both parents and read witness statements from other witnesses including the Deceased’s friends and wider family members, Chief Master Shuman concluded that she did not know what the Deceased’s wishes were, but that the Deceased had close connections and a feeling of peace when at Dartmoor. Chief Master Shuman therefore ordered that Letters of Administration limited to dealing with the disposal of the Deceased’s body and thereafter his ashes should be made to the father. It was further ordered that the mother should be permitted an opportunity to spend time with the Deceased before the cremation, and that some personal items belonging to the Deceased should be given to the mother. If the mother and father could not agree on the funeral, the mother was to be permitted to have her own service beforehand. 

The practical effect of the order was that the ashes were not to be split, although the Master made no specific comment on this issue, or on the case of Fessi v Whitmore[2], to which the Master referred, where Judge Boggis QC rejected splitting the ashes of a 12 year old child between his parents, describing the submission as “wholly inappropriate”.

Comment

The compromise of holding two funeral services is one I see regularly in practice, along with an agreement that one party will hold a funeral before the burial/cremation and another party will hold a memorial service afterwards. But disputes over ashes can be much more difficult to resolve.

In Read, the parties aired their arguments about what should happen to the ashes before the cremation, and in granting the father the right to Letters of Administration pursuant to s.116 of the Senior Courts Act 1981/the inherent jurisdiction of the court, the court settled the issue by determining that the father was the party who could scatter the ashes. But many ashes disputes arise only after the cremation (sometimes years later) by which time of course the body has already been disposed of and there is usually one party in possession of the ashes. 

Although it has been clearly established for many years that there is no right of ownership to a dead body, the position with ashes is not as clear cut, and ashes have been deemed by the court to be property which can be owned. In the Australian case of Leeburn v Derndorfer[3] Byrne J, sitting in the Supreme Court of Victoria said,

“Moreover, so long as they are not dispersed or otherwise lose their physical character as ashes, they may be owned and possessed. To my mind, therefore, it is apt to characterise the legal status of the ashes as similar to that of the preserved body in Doodeward v Spence[4]. In this way the application of fire to the cremated body is to be seen as the application to it of work or skill which has transformed it from flesh and blood to ashes, from corruptible material to material which is less so. The legal consequence of this accords with what I apprehend to be the community attitude and practice. Ashes which have in this way been preserved in specie are the subject of ordinary rights of property, subject to one possible qualification. In this way, ownership in the ashes may pass by sale or gift or otherwise. The only qualification, which, if it exists, may require some working out, arises from the fact that the ashes are, after all, the remains of a human being and for that reason they should be treated with appropriate respect and reverence.”

Byrne J then concluded that the executors held the ashes as trustees for the “purpose of disposing or dealing with them in a way that seems to them to be appropriate having regard to any direction of the deceased in the will or otherwise and having regard to the claims of the relatives or others with an interest.”

The conclusion reached by Byrne J, that the process of cremation has the result of transforming the ashes into property, was followed by DJ Marin in DP v JCP[5] who held that an executor in possession of ashes holds them on trust for the purposes of the family disposing of them, and Judge Boggis QC in Fessi determined the ashes dispute on the basis that the court was being asked to resolve a dispute between two trustees.

It can therefore be seen that disputes over ashes which arise subsequent to the cremation are not going to be resolved by making a s.116 application to appoint a Personal Representative, but will be proceedings under CPR 64 for determination of an issue arising out of a trust.

Nicola Phillipson TEP

February 2025

Nicola Phillipson is a barrister at Parklane Plowden Chambers specialising in Probate, Inheritance, and Trusts, and is the author of A Practical Guide to the Law in Relation to Control of the Body after Death (Law Brief Publishing)

[1] Rule 22 of the Non-Contentious Probate Rules 1987

[2] [1999] 1 FLR 767

[3] [2004] WTLR 867c

[4] [1908] HCA 45; (1908) 6 CLR 406 at 412, per Griffith CJ.

[5] [2010] COP 11692737