Solicitor, Private client
Updated March 9th 2023
“no one can confidently say that he will still be living tomorrow” – Euripides.
With life comes death. It is an inevitability for us all. It is as natural to die as it is to be born – though that does not make the grieving process any easier following the death of a loved one.
Now, have you ever considered who owns your body after you die? You may come to the conclusion that it does not matter, as you will not be around, and therefore it is not your problem, but it may be a problem for your loved ones or those dealing with your estate.
Problems of ownership only arise where multiple parties lay claim to the same piece of property. A useful starting point would be to rewind to 1614 and consider the case of Haynes.
In that case, a complaint was made against a one Mr. William Haynes; he was accused of digging up various graves and taking burial sheets from the bodies of the deceased – an allegation of theft was before Mr. Haynes, and in short, that he had stolen property belonging to the deceased. The outcome of the case was that there can be no property in a corpse. It has become settled case law that your deceased body cannot be owned by anyone; legally speaking, it is not property at all. The theft of a corpse itself, which has no owner, is no crime unless something is stolen with it.
Therefore, what follows is that your body, following your death, cannot form part of your estate and your beneficiaries cannot claim rights over your body at all.
Fast-forward nearly 400 years to the case of Dobson v North Tyneside Health Authority (1996) in which a 22-year-old woman died from a brain tumour in Newcastle General Hospital.
At the request of the coroner, a post-mortem was performed; the Deceased’s brain was removed, preserved and stored by the hospital in paraffin wax. Her body was returned to her family to be buried. Later, the brain was disposed of by the hospital in line with the Coroner’s Rules. The family of the Deceased brought a claim that the brain should not have been disposed of by the hospital. The Court of Appeal held that the next of kin have no right to regain possession of a body part of the deceased (in this case, the brain) which had been removed for autopsy; therefore, reinstating the rule, that there is no property in a corpse.
So, let us revisit the initial question. Who owns your body after death? The answer: no one. However, how your body is disposed is a matter for your personal representatives to decide.
Controlling what happens to your body after you die may be important to you, for others, not so much. If it is and you wish to have a say in what happens to your body following your death, and it would be sensible to put in place a Will appointing executors. Your executors can give effect to any such funeral wishes within your Will.
As was noted at the start of this article, problems arise where multiple parties lay claim to the same piece of property; in this instance, a corpse. Where there is no Will, or no direction as to what is to happen to your body after death, possible conflicts may arise between those individuals dealing with your estate, especially where they have disagreements as to what is to happen to your body.
The law is also out of touch with the general public’s expectations of dealing with a body following death. It is not simply a black and white choice between burial or cremation, especially as new methods of disposal are being developed (such as resomation and cryomation).
The law needs to take into account a shift towards a more environmentally friendly society and future-proof practices of enabling safe and dignified ways of disposing of bodies, as well as providing clear guidance in relation to who owns a body following death (as the current law is outdated and complex).
The Law Commission has recently announced a project to create a modern framework for disposing of the dead. It is anticipated that this report will last between 18-24 months and include reviewing the current laws regarding cremation and burials, considering the legal status of a Deceased person’s wishes in relation to their body following their death together with rules determining who owns your body following your death.
The sensible solution in the meantime would be to put in place a Will appointing executors, as they will be the individuals in charge of the disposal of your body when you die. Should there be disagreements between family members and the executors, the decision of the executors will be final.
If you would like to discuss the above further, or have any other questions regarding Wills and how to legally prepare for the death of yourself of a loved one, contact Tom Bridge or call 0191 232 8345.