Who arranges the funeral? If there is a will the executors are entitled to claim the body and have the right and duty to dispose of it and arrange the funeral. If there is no will the person primarily entitled to obtain a grant of letters of administration of the estate on intestacy is the person entitled to these rights. (See chapter 7 pages 66 and 67 as to who that person is.)

What happens if there are several people equally entitled who wish to deal with it differently? An Australian case suggests that because of the need to deal with the matter quickly, if one person has already made proper arrangements, for practical reasons that person’s wishes will be preferred.

Remember that the person who arranges the funeral is contractually responsible for paying for it.

If death takes place in hospital and there is nobody who is prepared to arrange and pay for the funeral, the Local Health Authority can arrange a basic funeral and can claim the cost from the deceased’s estate. As a last resort if the body is not claimed the local authority will arrange a basic funeral at the expense of the estate. In any case where the local authority arranges the funeral it is not permitted to cause the body to be cremated if it has reason to believe that to do so would be contrary to the deceased’s wishes. If the funeral is for a stillborn child (whether born at home or in hospital), the local hospital will usually be prepared to provide a free funeral. Maternity benefits may also be payable in cases of a stillbirth as well as in the case of a live birth. Although it is the executor’s duty and right to arrange the funeral, in practice the family usually arranges the funeral.

The funeral can take place as soon as is desired after the issue of the certificate for burial or cremation, or it can be delayed for a reasonable period to suit the family, but before the funeral can take place, apart from registering the death, there are other matters to be dealt with and decisions to be made.

The body will have to be ‘laid out’, that is washed and the eyes and mouth closed and the limbs straightened before ‘rigor mortis’ (stiffening of the of the limbs) takes place. The deceased will be dressed in his funeral clothes which can be his own clothes or a gown, called a shroud, provided by the funeral director. These services can, but need not necessarily, be provided by the hospital if death takes place in hospital or by the funeral director. Usually the deceased will be taken from the place of death to the undertaker’s chapel of rest where he will be kept in cool conditions to await the funeral.

The body may be given ‘hygienic treatment’, sometimes referred to as ‘embalming’, to preserve its appearance and delay decomposition. Hygienic treatment consists of substitution of a solution of formalin for the blood. Tell the funeral director whether or not this is required. Usually a ‘Green’ or woodland burial of embalmed bodies is not permitted.

If the family and friends wish they can visit the deceased in the chapel of rest by arrangement with the funeral director.

It will be necessary to decide where the funeral shall take place, whether the body is to be buried or cremated and if cremated what is to happen to the ashes.

The deceased may have left instructions in or with a will or spoken with family or friends as regards a preference for burial or cremation and as regards the form of the funeral. Whilst the decision of any executor with regard to these matters and place where the funeral shall take place is final (unless the law itself has required burial instead of cremation), it is usual to honour the deceased’s wishes. The law will not forbid cremation unless there has been a suspicion of foul play.

Although directions in a will concerning the funeral and disposal of a body are not binding, the deceased can perhaps achieve his wishes by leaving a legacy to his executor which is made conditional upon them being carried out!

If it is intended to take a body out of England and Wales (for example for a funeral), the coroner’s permission must be obtained at least four days before removal takes place, whether or not it has been necessary to report the death to the coroner.

BRINGING A BODY BACK FROM ABROAD

The body of a person who has died on a foreign ship or aircraft or out of England or Wales (’abroad’) can be brought back to England or Wales for a funeral, but it is expensive to do so and a death certificate and authority to return the body will have to be obtained from the relevant foreign country. It will be cheaper to cremate the body abroad and return the ashes but not all foreign countries have facilities for cremation.

The circumstances in which it is necessary to report a death to the coroner in the case of a death within his area in England and Wales also make it necessary to report the death to the coroner if the body is brought within his area from abroad.

Before the funeral of a person who died abroad can be arranged in England or Wales it is necessary to obtain a Certificate of No Liability to Register the death from the registrar of the subdistrict in which it is proposed that the funeral shall take place, unless a coroner’s authority for burial or cremation has been obtained, or the death has been registered with the British consul. It is advisable to register the death with the British consul in addition to registration with the foreign authorities, so that there will be a record in Britain of the death and it will be possible to obtain a copy death certificate from The Nationality and Passport Section of the Foreign and Commonwealth Office, which is only open on weekday mornings. If the funeral is to be a cremation, either authority from the Coroners Section of the Home Office or (if the death is not the result of natural causes) a certificate for cremation from the coroner is also required. Additionally it is necessary to produce an authenticated translation of the foreign death certificate which shows the cause of death.

HIV/AIDS

Although AIDS and HIV are not diseases which are notifiable under the Public Health Act 1984, the Public Health (Infectious Diseases) Regulations 1998 (SI 1998 No. 1546) applies sections 43 and 44 of the Act to AIDS and HIV.

Section 43 authorises a local authority or doctor to prevent the removal of the body of a person who has died from AIDS from hospital except direct to a mortuary or for burial or cremation and Section 44 imposes a duty upon a person in whose house a person has died from AIDS to take reasonably practical steps to prevent anyone coming into contact with the body unnecessarily. Breaches of these provisions are backed by criminal sanctions but in practice they are seldom enforced.

In cases of death following HIV or AIDS advice can be obtained from FACTS Health Centre, the Terrence Higgins Trust or the London Lighthouse Trust.

BURIAL OR CREMATION?

Cremation is considerably cheaper than burial and far more cremations take place in Britain than burials. The shortage of land for burials is acute, but many people have deep emotional, intellectual and religious feelings and beliefs as to whether they should be buried or cremated. Muslims and Orthodox Jews require burial, Buddhists and Hindus cremation. Sikhs will only permit cremation and request that their ashes be scattered in a river or sea. Non-Orthodox Jews will sometimes permit cremation. Some Christians request cremation, some burial.

If a young child is cremated there will probably be no ashes to be disposed of and consequently little in the sense of a place of memorial to visit. Any pacemaker must be removed before cremation to prevent a possible explosion, and if a crematorium medical referee is not satisfied with the additional medical forms which have to be completed for a cremation he can order a post mortem which cannot be refused, so if interference with the body after death disturbs you or you find it distasteful, choose burial. On the other hand a grave in a churchyard or municipal cemetery cannot be purchased; it is only leased for a number of years after which it might be re-used. Unless exclusive burial rights are purchased the grave is known as a ‘common grave’ and even after a few years strangers may be buried in it and sole occupancy lost.

Those churchyards that are not already full and closed to burials are filling up very quickly and there is a common law right for all who:

• live or die in a parish; or
• are on the parish electoral roll

to be buried in the churchyard unless it has been closed by due process of law. Further, as one judge put it, ‘It cannot be said that the churchyard is nearly full by considering only the areas which have never been used for burials. No churchyard is full and ripe for closure until all the parts of it in which reburial is possible have been buried over again at least once and until closure all burial rights continue.’ Reuse of graves is encouraged if the previous burial took place at least 75 years ago and there is no relative who is likely to be distressed by the removal of the headstone. Closed burial grounds are sometimes built over.

Although one might have a right to be buried in a churchyard there is no right to be buried in a particular place in the churchyard. That is a matter to be decided by the incumbent minister unless a faculty (i.e. an order from the church court for the diocese) reserving a right of burial in a specified grave space has been granted. It is possible to reserve a right of burial in a churchyard by petitioning and obtaining a faculty if one is entitled to be buried there; the fact that such a reservation will prejudice the rights of parishioners who may wish to be buried there in the future is not a ground for refusal of the petition. Anyone who is presently entitled to be buried in a particular churchyard and has a strong desire to do so because family members are buried there, or because they have strong connections with the parish but might move out of the parish, should consider applying for a faculty now, especially if space in the churchyard is scarce.

Subject to general guidance from the parochial church council, the incumbent as the freeholder of the churchyard may authorise the burial there of the remains of a person who would otherwise have no right of burial in the churchyard and no faculty will be granted for the burial of any such remains without the consent of the incumbent.

For a cremation, unless a coroner has issued a certificate for cremation, two cremation certificates signed by different doctors and a certificate for cremation issued by the Registrar are required, but if a funeral director is employed he will arrange for and deal with them.

Although a cremation can only take place at an authorised crematorium ashes can be buried on one’s own private land, on the land of another with the owner’s permission or scattered at sea and they can be disposed of with or without family and friends being present. After burial they cannot be removed later without permission from the Home Office.

Cremated remains may be buried in the Garden of Remembrance of the crematorium where cremation takes place or of another crematorium. Many crematoria no longer permit the scattering of ashes in the Remembrance Garden or the burial of containers; the ashes are buried directly into the soil.

Some churchyards and cemeteries have areas for burial of cremated remains and may permit them to be buried in a container even if they are full for burial of uncremated bodies. Burial of the ashes in a family grave which is considered to be full for the purpose of non-cremated remains is sometimes permitted.

If cremated ashes are to be taken abroad some countries require the container containing the ashes to be sealed in the presence of embassy staff and Customs and Excise will require a certificate from the crematorium where cremation has take place.

ALTERNATIVE FUNERAL ARRANGEMENTS

A funeral can be arranged and carried out with or without the assistance of a funeral director.

‘Green’ and ‘DIY’ burials

Although cremation can only take place at a licensed crematorium there are few regulations governing burial, provided the death has been registered with the Registrar and his certificate for burial or a coroner’s order for burial has been issued.

Instead of a traditional funeral carried out by a professional funeral director in a churchyard, municipal cemetery or crematorium, some people prefer a ‘green’ funeral. Green funerals can be carried out by the family with or without the assistance of a funeral director and burials can take place on private land with the owner’s permission. Instead of the usual hardwood or veneered chipboard coffin, a cheaper and more environmentally friendly biodegradable cardboard or wicker coffin may be used, but for a cremation the coffin must comply with the crematorium’s specifications. Environmentally friendly biodegradable coffins and environmentally friendly accessories can be obtained from Vic Fearn Ltd. or Compakta Ltd whose contact details are set out in the useful addresses section of the appendix. The website www.uk-funerals.co.uk contains information and lists of suppliers, funeral directors and monumental masons which will prove useful when arranging a funeral without a professional funeral director. Advice on arranging a ‘green’, ‘woodland’ or ‘DIY’ funeral can also be obtained from The Natural Death Centre, a non-profit-making charity which publishes information and is prepared to e-mail information and advice on the subject. Its principal publication, ‘The New Natural Death Handbook’, is a source of information as to such matters as available woodland burial sites and suppliers of funeral goods such as urns, shrouds, and cardboard or traditional coffins by overnight mail order.

Anyone considering a ‘DIY’ funeral must give some thought to collection and storage of the body pending burial, removal of any pacemaker if the body is to be cremated and to safety considerations when digging the grave. The body should be covered by at least 0.91 metres of soil. A body can begin to deteriorate soon after death and it needs to be kept cool and pacemakers must be removed before cremation to prevent a possible explosion. Some but not all professional funeral directors are prepared to assist with these matters without carrying out the remainder of the funeral.

Although burial does not have to take place in a churchyard or cemetery, it must not constitute a danger to public health or pose a pollution threat to the water supply, and it is as well to check first and in good time that the local authority has no objection. A check should also be made to ensure that the digging of the grave will not interfere with gas, electricity and other services. If it is proposed to carry out the burial in the garden of the deceased’s home careful thought should be given to the resale value of the property and the problem of tending the grave if the property is sold at a future date. To bury a body on another person’s land without their permission would be illegal as constituting a trespass to the land. Whenever a burial takes place on private land, it is wise to check the title deeds to ensure that they do not contain restrictions on the use of the land which prevent the use of the land for burial purposes. It is also wise to keep a record of the site of the burial with the title deeds because it is illegal to disturb a grave without permission from the Home Office. The Registrar of Deaths must be notified of the date and place within 96 hours of the burial, and the full name and age of the deceased, and date of death noted on the coffin lid.

A burial must not disturb a recognised archaeological site and any grave marker, high fencing or wall or multiple burials might require planning permission.

Burial at sea

Burial at sea is better arranged with the assistance of a professional funeral director. A licence from the Department of the Environment, Faming and Rural Affairs and a special coffin are required. It can only take place in certain parts of the sea off Newhaven and the Isle of Wight and the coroner’s permission is required to take the body out of the country. Such burials are expensive.

FUNERALS WITH THE AID OF A PROFESSIONAL FUNERAL DIRECTOR

To arrange a funeral with the assistance of a professional funeral director, take the registrar’s copy of the death certificate and either the registrar’s or the coroner’s certificate for burial or cremation to the funeral director. If the deceased died abroad, also take a Scottish or Irish death certificate or an authenticated translation of the foreign death certificate (as appropriate) and the Certificate of No Liability to Register or Coroner’s certificate for cremation or burial. Agree the arrangements (place, time, burial or cremation, type of coffin, number of cars, minister to officiate at the ceremony, etc.) with the undertaker. Check that the proposed burial ground is not likely to object to the type of headstone or other memorial that you have in mind, because churches and municipal cemetery proprietors are becoming increasingly particular as to what they will allow.

There is no legal requirement for funeral directors to be licensed or have training or any form of qualification, but most belong to a recognised professional body with a code of practice. Unless you have previous experience of the funeral director or he has been recommended to you it is as well to check these matters out before instructing him.

The role of a funeral director is that of adviser, organiser and supplier of services. A good funeral director will give you expert advice and practical help, accept responsibility for making most of the arrangements and he will fit in with your personal needs, wishes and ethnic customs. He will be understanding and provide emotional support. Most funeral directors have a chapel of rest where the body can be temporarily kept and visited. They can advise upon choice of coffin (wooden, cardboard, wicker basket type or metal container). If required some will arrange catering facilities, house sitting, the use of horse drawn vehicles and the photography and video services for which some people feel a need. The undertaker can also arrange publication of any obituary notices that might be desired, any donations to a favourite charity and floral tributes, or you can arrange these yourself or dispense with them.

When instructing a funeral director obtain a quotation for the cost of the funeral and check what services are offered and exactly what is included in the fee. Most directors will offer a package including the collection of the body, hygienic treatment (sometimes called embalming or cosmetic treatment) of the body, a choice of coffins, use of a chapel of rest, the making of arrangements with and completion of the necessary documentation for the cemetery or crematorium, the engagement of any required minister of religion and music, newspaper obituaries, transportation and payment of the fees for the cemetery or crematorium, the minister and other expenses. If some items in the package are not required it might be possible to negotiate a lower charge.

Floral tributes may be sent direct to the funeral director or to the place where the principal mourners will meet on the day of the funeral. If cremation has been decided upon, at many crematoria the floral tributes will be disposed of after a few hours and one might prefer to give instructions that cut flowers go to a local hospital instead. If so requested the funeral director will arrange to collect any cards sent with the floral tributes and pass them to the family after the funeral has taken place.

In the case of cremation it will usually be necessary to decide what is to be done with the ashes, but in the case of babies there may be no ashes.

If there is to be a religious ceremony but neither those who arrange the funeral nor the deceased have any contact with a minister, the funeral director can arrange for a minister to conduct the ceremony. If a non-religious ceremony is required the British Humanist Society can assist in making contact with someone to officiate. The person who is to conduct the ceremony will arrange a meeting to obtain information for his eulogy about the person who has died and to discuss anything required by the family or the deceased as to the form of the service, e.g. music, readings, any lying in church or requiem mass, etc. Friends and relatives may be invited to speak at the ceremony and should be notified of the date, time and place of the funeral. One should try to ascertain how many will attend the funeral and require transport to the church and how many will stay for refreshments after the funeral. It is usual to issue a general invitation to those attending the funeral (or at least to ask the closest friends and relatives attending) to return to the house or to repair to a local restaurant or pub for light refreshments. Some of those attending may have put themselves out or travelled a long way to attend.

MEMORIALS

If it is intended that there shall be any form of memorial such as a plaque or headstone, then before the funeral is arranged, enquiry should be made of those who manage the proposed site as to whether the proposed memorial and inscription is of a type and material that is likely to be permitted. Never order a memorial without checking this and the cost (including the cost of delivery and erection).

Cemeteries and churchyards enforce their regulations strictly.

In the case of St. Peter’s Limpsfield, which was decided by the ecclesiastical court for the diocese of Southwark in June 2004, even though the deceased had been a churchwarden at the church, permission to erect a memorial to him in the churchyard was refused because he was buried elsewhere. It was pointed out that churchyards were primarily for the burial of human remains in consecrated ground and the purpose of permitted memorials was to enable relatives and others to know where the remains were interred. Any other information which might be permitted (for example, information as to the deceased’s achievements in life) was considered to be secondary. Memorials to community events, such as war memorials, were permitted as exceptions and other memorials (in the strict sense of the word) would not be permitted because they would utilise scarce space that might otherwise be available for burials.