FREE chapter from ‘A Practical Guide to the Law in Relation to Control of the Body After Death’ by Nicola Phillipson TEP

CHAPTER ONE – POSSESSION OF THE BODY

There is no right of ownership in a dead body. However, there is a duty at common law to arrange for its proper disposal. This duty falls primarily upon the personal representatives of the deceased (see Williams v. Williams (1881) 20 Ch. 659; Rees v. Hughes [1946] K.B. 517). An executor appointed by will is entitled to obtain possession of the body for that purpose (see Sharp v. Lush (1879) 10 Ch. 468 at 472; Dobson v. North Tyneside Health Authority [1997] 1 WLR 596 at 600 obiter), even before there has been a grant of Probate. Where there is no executor that same duty falls upon the administrators of the estate, but they may not be able to obtain an injunction for delivery of the body before the grant of letters of administration (see Dobson).”
Buchanan v Milton1 per Hale J.

This oft quoted extract from Buchanan clearly and succinctly sets out the law in relation to the issue of who has the ‘right’ to possession of a body after death. A dead body cannot be classed as ‘property’ and therefore cannot be owned by anyone after death. There is, however, a duty to ensure that the body is properly disposed of, and the person/body tasked with this duty has the corresponding right to call for possession of the body to enable this duty to be fulfilled.

It can therefore be seen that to answer the question ‘who is entitled to the body after death?’, the question which generally needs to be asked is actually ‘who has the duty to properly dispose of the body?’

Absent an order from the court, the order of priority for those with the duty to dispose of the body is as follows:

  1. where there is a valid will – the executor(s) named in the will.

  2. Where there is an intestacy, the administrator(s) named on the letters of administration.

  3. Where there is an intestacy but Personal Representatives have not been appointed, it will be the person(s) with the highest right to take out a grant as set out in section 46 of the Administration of Estates Act 1925 and rule 22.1 of the Non-Contentious Probate Rules 1987.

Non-Contentious Probate Rules 1987 SI 2024, Rule 22.1:

22.— Order of priority for grant in case of intestacy

(1) Where the deceased died on or after 1st January 1926, wholly intestate, the person or persons having a beneficial interest in the estate shall be entitled to a grant of administration in the following classes in order of priority, namely–

(a) the surviving spouse or civil partner;

(b) the children of the deceased and the issue of any deceased child who died before the

deceased;

(c) the father and mother of the deceased;

(d) brothers and sisters of the whole blood and the issue of any deceased brother or sister

of the whole blood who died before the deceased;

(e) brothers and sisters of the half blood and the issue of any deceased brother or sister of

the half blood who died before the deceased;

(f) grandparents;

(g) uncles and aunts of the whole blood and the issue of any deceased uncle or aunt of the

whole blood who died before the deceased;

(h) uncles and aunts of the half blood and the issue of any deceased uncle or aunt of the

half blood who died before the deceased.

  1. The householder in whose property the Deceased died2 and/or the person with actual possession of the body (often a hospital or the coroner).

  2. In the absence of any of the above, section 46 of the Public Health (Control of Disease) 1984 provides that it shall be the duty of a local authority to cause to be buried or cremated the body of any person who has died or been found dead in their area, in any case where it appears to the authority that no suitable arrangements for the disposal of the body have been or are being made otherwise than by the authority. An authority shall not cause a body to be cremated where they have reason to believe that cremation would be contrary to the wishes of the deceased, and an authority may recover the expenses from the estate of the deceased person.

In relation to children, if the child is in the care of the Local Authority, following the death of the child, the right or duty to dispose of the body reverts to the child’s natural (or adopted) parents (R v Gwynedd County Council ex parte B3).

It can be seen that the list of people with a ‘duty to dispose’ does not include ‘a person nominated by the Testator’. As a body is not classed as ‘property’, a direction in a will as to the disposition of the Testator’s body cannot be enforced4

Where a dispute arises between two or more people equally obliged to carry out the duty, or where there is a dispute between the person so obliged and other persons, an application can be made to the court to determine to whom a grant should be given for the purposes of disposing of the body5.

It is sometimes said that where there is no executor, possession of the body will belong to the next of kin. However, in Dobson v. North Tyneside Health Authority6, it was noted that although the Personal Representatives of the Deceased and those who have a duty to inter the Deceased, have the right to custody and possession of the body until the duty is discharged, the court was “not aware that there is any authority that there is such a duty on the next of kin as such. If there is no duty, there is no legal right to possession of the corpse.”

Where a coroner is under a duty to investigate the death of the Deceased, or is considering whether (s)he is under such a duty, the coroner has a right to possession of the body for that purpose7, although the coroner must release the body for burial or cremation “as soon as is reasonably practicable” and notify the next of kin or Personal Representative of the Deceased of the reason for any delay beyond 28 days8.


Exceptions

Having said that there is no property in a dead body, and that a Testator cannot dispose of his/her body by will, the potential exceptions to these rules must be considered. These exceptions concern bodies or body parts which have undergone a process of human application or skill and the provisions of the Human Tissue Act 2004 (“HTA”).


Human Application or Skill

Bodies, or parts of bodies, are capable of being classed as property if they have acquired different attributes through the application of skill such as dissection or preservation techniques9.

Giving judgment in R v Kelly, Rose LJ stated that “it has now been the common law for 150 years at least that neither a corpse nor part of a corpse are in themselves and without more capable of being property protected by rights”, and it is noted that the offence of removing a body from a grave is to be distinguished from theft of a corpse. “If that principle is now to be changed, in our view, it must be by Parliament …”. It is however also noted that the common law does not stand still, and therefore it may be that in the future, if the occasion arises, the court will hold that human body parts are capable of being property for the purposes of s.410 even without the acquisition of different attributes, if they have a use or significance beyond their mere existence – for example, intended for use in an organ transplant operation, for the extraction of DNA, or as an exhibit in a trial.

In Dobson v. North Tyneside Health Authority11, it was held that the removal of a brain and preserving the same in paraffin as part of a post mortem did not have the effect of transforming the brain into an item to which the Claimant, in circumstances where she had no duty to dispose of the body, had a right of possession.


Human Tissue Act 2004 (“HTA”)

The HTA is a statutory scheme which permits, either by will or other appropriate consent12, the donation of a body, organs and/or tissue for the purposes set out in Schedule 1 of the HTA, which include research, transplantation and public display. This scheme operates as an exception to the rule that instructions given by the Deceased as to how his/her body should be dealt with after death are not binding. The HTA Code of Practice A13 provides:

20. If appropriate and valid consent has been provided, then this is sufficient for an activity covered by the HT Act to proceed (subject to licensing and other legislative requirements having been met).

21. The existence of consent permits an activity to proceed, but does not mandate that it must. However, once someone has given consent, no other person has a legal right to revoke it and the decision whether to proceed with an activity rests with the person who will be undertaking it. The HT Act and common law establish the principle that the decision to consent rests first and foremost with the person whose body, organ, tissues or cells are being used. Where that person has died, their nominated representatives or relatives should be sensitively supported to respect that person’s consent to ensure the best chance of their wishes being fulfilled.

The intricacies of the HTA are beyond the scope of this work, but it should be noted that by section 4 of the HTA, an adult may appoint one or more nominated representatives to carry out his/her wishes after death in relation to activities for which consent under the HTA is required. Such representative will not necessarily be the Personal Representative.

The HTA also provides that consent can be given by a child or a person who had parental responsibility for the child immediately before the child’s death14, which person may of course not be the natural or adopted parent of the child. In relation to children, the Code of Practice A states:

87. Under the HT Act, a child (except in the context of qualifying relationships) is defined as being under 18 years old. The position of a child who, before they died, was competent to reach a decision and gave consent for one or more scheduled purposes after their death, is no different from that of an adult. Their consent is sufficient for medical practitioners to make lawful under the HT Act the removal, storage or use of tissue for the specified scheduled purpose(s). Additional requirements may apply under other legislation. For example, clinical research may also be regulated by the Medicines and Healthcare products Regulatory Agency (MHRA) and clinical trials regulations.

88. The principle of ‘Gillick competence’ applies to the assessment of a child’s competence to consent in these circumstances. In the Gillick case, the court held that a child was considered competent to give valid consent to a proposed intervention if they had sufficient intelligence and understanding to enable them to fully understand what was involved.

It can therefore be seen that the HTA provides scope for a situation where there may be an argument that a nominated representative under the HTA, or a person with parental responsibility for a child, has a greater call on the body than the Personal Representative.


Court Orders

As will be considered in later chapters, the court has the power to disrupt the hierarchy of those entitled to call for the body, and has even dictated precisely how a body will be disposed of15. The court also has inherent power to direct DNA testing post mortem of extracted DNA samples to establish biological relationships, regardless of the wishes of the Personal Representative16.

2 Re: Stewart 12 Ad & El 773

3 [1992] 3 All ER 317

4 Williams v. Williams (1881) 20 Ch. 659

5 see Chapter 3

6 [1997] 1 WLR 596

7 section 15 of the Coroners and Justice Act 2009

8 Coroners (Investigations) Regulations 2013 (SI 2013/1629), Regulation 20.

9 R v Kelly [1999] QB 621

10 of the Theft Act 1968

11 [1997] 1 WLR 596

12 HTA s.3

13 The current version was published 20 May 2020

14 s.2

15 Oldham Metropolitan Borough Council v Makin [2017] EWHC 2543 (Ch)

16 Spencer v Spencer [2018] EWCA Civ 100 (also known as Anderson v Spencer) See also Nield-Moir v Freeman [2018] EWHC 299 (Ch) where HHJ Matthews suggested at paragraph 36 that the court “may well have an inherent jurisdiction to order a person to consent to giving such a sample so that it may be DNA tested. A failure in such a case to consent might then amount to a contempt of court”.