THE BLOG

Grave Concerns: Who Owns a Corpse

26/02/2013 15:44 GMT | Updated 07/04/2013 10:12 BST

My mind has been much exercised recently after reading about a case which has come to light in Edinburgh.

It involved a local council and the mummified corpses of an elderly couple. Following their deaths, in 1987 and 1994 respectively, their son had them embalmed in the hope that their family home might be turned into a mausoleum.

However, he moved away from the area before agreement could be reached with the local authority, which has now been left with the dilemma as to what to do next.

It got me thinking about a question which has cropped up over the years for myself and my colleagues at Pannone LLP too: who owns a corpse?

It tends to arise most frequently during disputes among family members about how to deal with the remains of a relative albeit in circumstances rather less macabre than those in Edinburgh.

Most people would imagine that determining what should happen to their remains after they die is a relatively simple issue. The common logic runs that whether - and how - you would like to be cremated or buried and even the choice of music to be played at your funeral can be set out in a final and binding fashion in a will.

However, instructions in a will which relate to funeral wishes are merely expressions of intent and not legally binding, so do not have to be followed. One reason is because wills provide directions about how to divide up the deceased person's property and, as a dead body is not counted as property - at least in the same sense as, say, physical or financial assets - the documents can't be used to give specific, enforceable guidance on disposal of their corpse.

There are, though, a number of individuals who can temporarily possess a corpse for the purposes of disposing of it. In practice, the primary responsibility lies with the person or persons appointed as executor if a will has been made or administrators under a Grant of Letters of Administration if one hasn't.

Thereafter, the duty falls to parents if the deceased is a child, the householder - including managers of a hospital - in whose premises a body lies or the local authority where the body may have been found.

Differences of opinion are generally more likely without a will although there is still scope for disagreement even when someone has taken the time and trouble to set out their wishes before dying.

In our experience, some rows have merely been about who gets to act as pallbearer at a funeral while, on other occasions, the upset of losing a family member has been aggravated by arguments which can only be resolved by dividing up someone's ashes or by the intervention of a judge.

There have also been far more notable and more complex examples of families being prevented from paying their full and final respects. This year marks the tenth anniversary of families of more than 1,000 dead children agreeing a settlement with Alder Hey Hospital in Liverpool. It had wrongfully retained organs from infants without their parents' permission.

Ultimately, it emerged that the situation at Alder Hey was not unique, with other hospitals around the country also admitting to pursuing similar policies for research purposes or even commercial gain.

The revelations prompted not only a major inquiry but a change in the law, resulting in the setting up of a new body, the Human Tissue Authority, to clarify the issue of ownership of remains and regulate the removal, use and retention of organs.

That new structure did not, however, mean that officials no longer kept bodies or body parts without express approval. For instance, only last year, the Association of Chief Police Officers - or ACPO, for short - was roundly criticised for admitting that its members had retained samples from cases stretching back more than 40 years.

Perhaps understandably, quite a few clients are eager to avoid the possibility of confusion over what may happen to their remains when they're drawing up their wills. My advice is always to make their intentions as clear as possible and to appoint executors whom they trust to carry out those wishes.

As they appreciate, thinking about the practicalities of one's funeral isn't the most pleasant thing to do but it is very necessary in order to ensure that they - and their surviving friends and relations - can rest in peace.