Dear Gary,
After a forty-year marriage, my ex-wife and I divorced amidst tension when I started a relationship with my now-deceased second wife. This caused a rift between me and my children, but since the passing of my second wife three years ago, we’ve managed to repair our relationship. I’ve even made them the beneficiaries of my will, which I updated last year.
However, I’m faced with a dilemma. I wish to be buried with my second wife, but my children are adamantly against it. They don’t even like it when I mention her. My biggest fear is that when I eventually pass away, my children will not honor my funeral wishes and essentially erase my second wife from the picture. How can I legally ensure that I will be laid to rest where I want to be, alongside the woman I love?
Best regards,
Roger
Gary advises:
When discussing funeral wishes included in wills, clients often dismissively say, “I won’t be here, so I don’t care what they do.” However, in your case, there are added sensitivities that clearly demonstrate your concern, and I completely understand that.
Presumably, your children want to remember you as their father during their upbringing, along with your marriage to their mother and the history connected to it, as well as acknowledge what has transpired since. I hope you can have an open conversation with them and find common ground while you’re still alive. Nevertheless, it’s important to understand the legal aspect.
Based on your question, you assume that your children have some inherent right to dictate the disposal of your remains. However, in law, your children do not automatically possess such a right. There are no property rights associated with a deceased body, which means that no one can claim ownership of the corpse. Consequently, no one can legally “inherit” your body.
Legally, the responsibility of disposing of the body lies with the person entitled to possess it for the purposes of the funeral. This person, or persons, are the executors named in your will.
Therefore, it is crucial for you to create a will and name executors who you trust to carry out your funeral wishes exactly as you desire. I acknowledge that professional executors may come with a cost, but there are situations where it is highly advisable. These circumstances include cases where the person making the will fears family discord and does not wish to burden a family member or friend with the responsibility of fulfilling their wishes.
A professional, such as a solicitor, can impartially fulfill this role and act dispassionately if necessary, which seems to align with your intentions.
Some argue that having professional executors means granting them the freedom to charge as they please for their services. However, there is a simple way to address this concern. When preparing the will, you can agree upon the basis of any future charges. Additionally, solicitors have an obligation to be transparent about their fees. Furthermore, if you provide detailed funeral instructions to your solicitor, they are obliged to adhere to your wishes as their client.
If, for any reason, you choose not to appoint a professional executor, there is a legal argument, following the enactment of the Human Rights Act 1998, that the failure to fulfill a person’s funeral wishes could breach Article 8 (respect for family life) or Article 9 (freedom of conscience, thought, or religion). However, practically speaking, there may not be anyone to assert this right on your behalf after your passing. Is it really worth engaging in a legal dispute before your funeral? Therefore, it is wise to stick to the sound advice of having executors who possess the legal right to dispose of your body and are bound by professional duty.
Lastly, you have two options to consider. Firstly, you could make detailed funeral arrangements in advance by collaborating with a local funeral director of your choice, agree upon a price, and allocate the necessary funds to a designated personal bank account.
Secondly, since you have included your children as beneficiaries in your will, you could make any gifts to them conditional upon their non-interference or obstruction of your known funeral wishes. However, insisting on their attendance at the service may not be a reasonably enforceable condition.
I sincerely hope that when the time comes, you receive the send-off you desire and that your family is able to commemorate your entire life.
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