The case of Patel v Patel [2025] EWHC 560 (Ch) explores an issue which rarely tends to find its way before a Judge but one which is nonetheless an important issue to consider, this being what happens when executors cannot agree on funeral arrangements and who can make the final decision.
This case involved a dispute between the deceased’s son and daughter over the funeral arrangements for their late father. Both were been named as executors in the deceased’s will.
Background
The deceased was born in India but moved to England in 1954 with his wife. This is also where their children were born and raised. The deceased and his wife were devout Hindus.
The deceased’s wife died first, on 24th February 2024, and in accordance with Hindu traditions her body was cremated (she had clearly expressed in her will that she wished to be cremated), and her ashes were scattered in England.
The deceased died on 30th December 2024, he had made a will dated 22 December 1993 however his will did not provide any directions as to his funeral arrangements. Following his death, the executors were at war, his son, the claimant in this case, maintained that his father had told him after his mother had died, that he wanted the same funeral arrangements as his wife, this being cremated and his ashes scattered in England. However, the deceased’s daughter, the defendant in this case, presented a different position to the court, she stated that her father had told her in the months leading up to his death that he wished to die in India and in the event where he died in England then he wanted his body to be taken to India and buried.
The Law
HHJ Matthews stated that the law was clear in respect of the rights of a personal representative to the possession of the deceased’s body for the purposes of a funeral and referred to the case of Buchanan v Milton [1999] 2 FLR 844, where Hale J said:
“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] KB 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).”
HHJ Matthews then had to consider the way in which the Court was able to intervene, and he looked at:
- 116 Senior Courts Act 1981 which provides that:
“(1) If by reason of any special circumstances it appears to the High Court to be necessary or expedient to appoint as administrator some person other than the person who but for this section would in accordance with probate rules have been entitled to the grant the court may in its discretion appoint as administrator such person as it thinks expedient.
(2) Any grant of administration under this section may be limited in any way the court thinks fit”.
However, the claimant and the defendant had been both named as executors jointly and the decision to make in respect of the funeral agreements was one for them to make together but they were not able to agree.
- The courts inherent jurisdiction
HHJ Matthews considered the case of Oldham Metropolitan Borough Council v Makin [2018] Ch 543 where Sir Geoffrey Vos, stated:
“80. In my judgment, the court does have an inherent jurisdiction to direct how the body of a deceased person should be disposed of. The court will normally, as I have said, be deciding between the competing wishes of different sets of relatives, and will only need to decide who should be responsible for disposal rather than what method of disposal should be employed. I cannot see, however, why the court’s inherent jurisdiction over estates is not sufficiently extensive to allow it, in a proper case, to give directions as to the method by which a deceased’s body should be disposed of. In my view, it is. Moreover, I am, for the reasons I have given in relation to section 116, prepared to exercise that jurisdiction in this case”.
HHJ Matthews relied on this authority to use the Courts Inherent jurisdiction to provide directions on the method of disposal of the deceased’s body.
Judgement
In his judgment, HHJ Matthews found that it had been difficult to determine the wishes of the deceased, and he found both the claimant and defendant to be reliable in their evidence. “[B]oth the claimant and the first defendant were telling the truth as they believed it to be, and neither was attempting to mislead the court”.
He noted that the family were all in agreement with the views of the claimant and it was only the defendant who had a different view, and this was based on the “perception of what the deceased wished for himself, and not on what she herself wishes for him.” It was the defendant’s case that she was not advocating her personal view on this.
In reaching a conclusion, HHJ Matthews considered a number of factors including the place where the deceased was most closely connected. He found this to be England as the deceased had lived here for 70 years (the majority of his life) with his wife, and it was where he raised his family. In comparison the deceased had not been back to India in over 20 years; and only extended family remained in India. Whilst England was not his place of birth it was his chosen home. Further, his wife’s ashes had been scatted in England.
He also considered the costs involved in transporting the deceased’s body to India would be significantly more, there would be the legal and administrative costs involved for the international transportation of human remains too. There would also be the costs for those family members who would have to travel to and from India.
In terms of timeframes, there had already been a period of three months since the deceased’s death where the body had remained undisposed of, to transport it to India would cause further delays.
HHJ Matthews when taking these various factors and the evidence into account, was of the view that the “right decision is to direct that the body of the deceased be cremated and his ashes scattered here in England, in accordance with the appropriate Hindu rites. In my judgment there is no sufficient justification for directing a burial in India on the facts of this case.”
He also added that he placed greater weight on the wishes of the wider family, he said that their needs were the “needs of the living”, they would be the ones that would be attending the funeral and the ones that would be grieving, and the funeral would give them both comfort and closure. He was of the view that the deceased’s views on his funeral arrangements were not legally enforceable but rather one of several factors which he was considering. The reason why it was not enforceable and only just a factor was because the deceased had not included directions in his will as to the disposal of his body.
Costs
HHJ Matthews was then asked to consider the issue of costs. Whilst costs are generally in the court’s discretion, it is common practice for the losing party to pay the winning parties costs, therefore the claimant sought an order the defendant should be ordered to pay his costs.
When considering this issue, it was HHJ Matthews view that the dispute was because of the deceased not expressly setting out in writing what his wishes were in relation to his funeral arrangements and had he done so he had no concern that the defendant would have acted in accordance with those wishes. It was on this basis that he ordered that the costs of the parties were payable from the estate.
Conclusion
This case is another helpful reminder that when you are preparing your will it is essential you set out clearly what your wishes are in respect of your funeral arrangements to avoid a situation such as this. This avoids further unnecessary anguish between the family members and could save the estate from incurring these legal costs.
HHJ highlighted that disputes such as these cause a great deal of sadness and prevent the family from moving on with their lives and coming to terms with their grief.
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