Losing a loved one is never easy, with the grief potentially also accompanied by practical responsibilities that you might not be ready for – including coming to an agreement over what happens next.
While funerals are intended to bring people together, disagreements over burials and respecting the wishes of the deceased are more common than people expect, surfacing at the worst possible time – in the days immediately after a death – when emotions are already running high.
Following a recent High Court ruling, which shows just how complicated these disagreements can become, Jared Martin, Solicitor in Thrings' Contentious Probate team, explains what families can do if they find themselves in a similar situation.
Godwin v Godwin
Burial disputes can arise in a variety of ways, with relatives disagreeing on anything from burials vs cremation and where the grave should be to the style of service or even on who should be allowed to attend.
Highly fact-specific, they are rarely about logistics alone and are often shaped by tensions within family dynamics, differing cultural practices, and uncertainty about the deceased’s own wishes.
A recent High Court judgment between two brothers over where to bury their father has demonstrated how quickly these situations can escalate.
Mr Godwin had lived in the south of France for more than 30 years before his death in 2025. In 2003, he had written a note saying he wished to be buried in a French cemetery, in a plot reserved with his then partner – but they separated around 15 years before he died.
When it came to it, his two sons could not agree on what should happen – with one wanting a cremation in England so relatives could attend easily, while the other wanted the Christian burial in France, in keeping with their father's earlier wishes. Unable to reach agreement, the brothers asked the court to decide.
Who actually decides?
English law is clear on one point: nobody owns a dead body. It cannot be treated as property. Instead, responsibility for arranging its disposal usually falls to the deceased's executors, if they left a valid will, or to the administrators of the estate if they did not.
Where there's a dispute over who the rightful executor or administrator is – for example, because someone is challenging the will – things get more complicated. Even so, the courts are clear that a body needs to be dealt with promptly, and that this cannot simply wait for every other dispute to be resolved first.
What the court takes into account
When a disagreement can't be settled between the family, the court can step in and make a binding decision. Judges typically weigh up:
- any wishes the deceased expressed, whether in a will, a letter, or elsewhere.
- the reasonable views of surviving family members, weighed fairly against each other.
- cultural and religious considerations that ought to be respected.
- Act quickly, but don't panic. Bodies need to be dealt with within a reasonable time, so it's worth getting legal advice early, even if only to understand your options.
- Look for evidence of wishes. Check the will first, then consider any other written or verbal indications, bearing in mind how much weight these are likely to carry.
- Try to resolve things within the family first. Court proceedings should be a last resort. Mediation or a calm, structured conversation between relatives can often avoid the need for litigation altogether.
- Get advice on who holds legal responsibility. If there's uncertainty about who the executor or administrator is, this needs sorting out urgently, without delaying the funeral unnecessarily.
- Consider urgent court intervention if talks break down. Where family members simply cannot agree, seek legal advice on applying to the court for a swift decision, so your loved one can be laid to rest with dignity.
Crucially, a person's stated wishes are not automatically the final word. In this case, the note written in 2003 was given less weight because circumstances – the relationship ending – had changed considerably by the time of death.
The court ultimately decided that a Christian burial in England better reflected what would be meaningful for the family, partly because arranging a French burial would cause delay, and partly because Mr Godwin no longer had close family ties in France to visit a grave there.
What you can do
The best first step to avoiding a dispute is to start by checking whether the deceased left a will – and if it sets out their wishes for what to do with their body. Courts can also consider things said informally during a person's lifetime, though these carry less weight, especially if said long before death or if circumstances have since changed.
Where a dispute does arise, some points to consider include:
Whether you are facing conflict over an inheritance or have concerns over someone’s capacity, Thrings’ Contentious Probate lawyers provide expert guidance to protect your interests. By offering practical, clear and compassionate advice on matters related to contentious Wills and Probate, the team help you navigate these sensitive issues with confidence and security. For more information or to discuss your estate planning needs, get in contact today.
