Who will own my dead body?

For clients dealing with the passing of a loved one is never an easy task. In the legal profession, we can see the worst of people surface when dealing with the loss of loved ones. Families can often be torn apart when arguing about issues not covered in a will. The presumption is often that disputes arise over items of value. However, people forget that when dealing with the loss we become more emotional and sentimental. These feelings often outweigh the want for goods of economic value. As such although it may seem unlikely there are cases where disputes arise over the dead body of the deceased. These disputes can occur between children and stepchildren or children from one marriage to the spouse from another marriage.

So what happens when the dispute arises.

Believe it or not, these types of arguments are more common than you think. Generally, the courts when dealing with such a dispute will look at the will. However what happens when a will contains no instructions on disposal of the body? When the will does not specify how the body should be disposed of the courts have accepted it is the executor’s responsibility. This means the executor will take “possession” of the body and decide if the body should be cremated or buried. The executor will also decide where the burial should take place or where the ashes will be stored.

So what do we suggest when clients want to be buried in their favourite slippers or with a cherished possession? We say go for it but do not forget to specify how the body will be disposed of including the type of burial and location or the type of cremation and what will be done with the ashes.  Failure to address this will result in disposal and possession of the body the duty of the executor.

If you have any inquiries about this article or wish to create a will please contact our team of dedicated estate lawyers who will happily assist you on (02) 9687 8885. If you find yourself in a battle for where you wish for your loved one to be buried we can also assist you in this matter.