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Will your family argue over your ashes?

Back in the day it was usually a spouse and children who decided what happened to your remains after you died and there were very few arguments. Today, with split and separated families living thousands of miles apart arguments are flaring about what to do with the remains of those they loved.

A recent case resulted in a court dispute as to which side of the Atlantic the remains of war veteran were to be buried. Mr M had been married to his American wife and had two children before his divorce. Following the divorce he returned to the UK and married his first and true love whom he met and initially married during the war. Some may say that romance survives all but that was not the thinking of Mr M's America daughter who wanted her father's remains returned to America for burial.

There is clear case law on what happens in these circumstances. No-one has a right of ownership of a body and any instructions placed in a will do not amount to the disposal of an individual's own body. It is recognised by law however that there is a legal right to possess a body in order to arrange a cremation or burial. This right is held initially by the executors if the deceased left a will or if no will was left the Non Contentious Probate Rules 1987 (section 22) provides an order to whom this right passes.

In Mr M's case whilst his executors had the right to deal with his funeral wishes following death the High Court, in these circumstances, supported the American daughter in preventing the funeral. After twelve months of dispute the love of Mr M's life agreed for his remains to be returned to America.

If there are individuals who all have the same level of right to make funeral arrangements ie children, the High Court have said that the deceased's wishes must be taken into account, the wishes of the family and friends must be taken into account, the place in which the deceased was most connected must be taken into account and the practicalities of arranging a funeral are all factors of key importance. So, not much clearer then!

These are just the problems faced with burials! What happens if there is a dispute over cremation?

An executor or near relative over the age of 16 can apply to have a body cremated. The Cremation (England and Wales) Regulations 2008 state that ashes can only be given to the person applying for the cremation or the person nominated by the applicant.

All of this is clear as mud. So what can you do to try and make it just a little easier?

A will can help to deal with potential arguments. You are able to include in your will specific wishes in relation to your funeral and what you want to happen to your remains. Do you want to be cremated (or cream tead as my autocorrect often puts!) or buried. Do you want to be put in a rocket or a firework to made into a diamond ring? Who do you want to have the responsibility of making your funeral arrangements? These wishes are not instructions to executors as to how your body is to be disposed but an expression of your wishes for your executors and family to follow.

A funeral plan will also help to prevent dispute as you are in charge of making the arrangements you want at a time when you are able to do so. Funeral plans take away difficult decisions for families at a time when emotionally they really cannot make any decision at all. The funeral director will then have clear instructions about where roles and responsibilities lie.

As I always say to clients, you absolutely must discuss this subject with your family. Making decisions about my gran's funeral was one of the hardest things I have had to do. Even though I do this for a living we had never discussed what she wanted after death because we were too busy making sure she enjoyed her life.

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