Who owns cremation ashes (Part I)

Who owns cremated ashes?

We have trawled through case law to find the answer of one of the most common queries to Scattering Ashes –

Who owns cremation ashes: the answer it would appear is  – You can’t own them

This is why we have called it part 1, because the answer is brilliant and useless by the same measure. You can’t own them because common law appears to say that they are the same as the person, who thus can’t be owned.  However this it an entirely different to…

Who has the right to possess cremation ashes? A different answer, but not a simple one

Now please don’t take this as opinion from a lawyer, it is what we surmised from the case law (the most relevant part of  judgement we have extracted and pasted at the bottom of the page – we think this isn’t breaking copyright law).

The right to possess the ashes is likely to be “the executor*, or whoever was at the charge of the funeral” or basically the person whom has the contract with the funeral director.

* not to be confused as the executor of the Will

It also appears that the theft of the ashes is not necessarily a crime, yet theft of the urn is!

What we don’t know:

  • What the right to possess means in this respect – is there responsibilities as well as rights,  for example are they allowed to scatter the ashes? Probably.

What amazed us was that there seems to be no specific case law on this. We will keep looking.

Lastly to make it absolutely clear – this is our opinion and is not legal opinion and should not be cited or considered as such.

Case law extract with full detail of the case at the bottom.

 

  1. A human corpse
  1. In his Institutes of the Laws of England, mostly published in 1641, after his death, Sir Edward Coke wrote (3-203) that the “buriall of the Cadaver is nullius in bonis [in the goods of no one] and belongs to Ecclesiastical cognizance”. In his Commentaries on the Laws of England, published in 1765, Sir William Blackstone wrote (15th ed, 1809, Book II, Ch. 28, pp 428-9) that:

“…though the heir has a property in the monuments and escutcheons of his ancestors, yet he has none in their bodies or ashes; nor can he bring any civil action against such as indecently at least, if not impiously, violate and disturb their remains, when dead and buried. [But] if any one in taking up a dead body steals the shroud or other apparel, it will be felony; for the property thereof remains in the executor, or whoever was at the charge of the funeral.”

There were at least three reasons for the rule that a corpse was incapable of being owned. First, in that there could be no ownership of a human body when alive, why should death trigger ownership of it? Second, as implied by Coke and Blackstone, the body was the temple of the Holy Ghost and it would be sacrilegious to do other than to bury it and let it remain buried: see for example, In Re Estate of Johnson 7 NYS 2d 81 (Sur. Ct. 1938). Third, it was strongly in the interests of public health not to allow persons to make cross-claims to the ownership of a corpse: in the words of Higgins J in his dissenting judgment in Doodeward v. Spence in the High Court of Australia, (1908) 6 CLR 406, there was an “imperious necessity for speedy burial”.

  1. Hence the decision of Kay J in Williams v. Williams [1882] 20 Ch D 659. By codicil to his will the deceased directed that his executors should give his body to Miss Williams; and by letter he requested her to cremate his body under a pile of wood, to place the ashes into a specified Wedgwood vase and to claim her expenses from his executors. After the body had been buried at the direction of the executors, Miss Williams therefore caused it to be dug up and (because cremation was not lawful in Britain until 1902) it was sent to Milan and cremated; and she caused the ashes to be placed into the vase. Then she claimed her expenses from the executors. Kay J dismissed her claim. He held that there was no property in the corpse; that therefore a person could not dispose of his body by will; and that Miss Williams therefore had no right to cause it to be dug up and taken abroad for cremation.
  1. It is well recognised that in the twentieth century the High Court of the Commonwealth of Australia has made a vast contribution to the development of the common law. But its authority was to reverberate in an area perhaps nowhere more surprising than that which was the subject of its decision in Doodeward cited above. The body of a still-born two-headed baby was preserved in spirits by the doctor who had been attending its mother; upon the doctor’s death it was sold and later came into the possession of C, who exhibited it for profit as a curiosity. D, a police officer, seized it with a view to its burial. C’s action for detinue succeeded. Griffith CJ said:

“[W]hen a person has by the lawful exercise of work or skill so dealt with a human body or part of a human body in his lawful possession that it has acquired some attributes differentiating it from a mere corpse awaiting burial, he acquires a right to retain possession of it …”

Although evidently disgusted by C’s exhibition of a “dead-born foetal monster”, Barton J agreed. Higgins J dissented on the footing that there could be no ownership of a human corpse.

Parts of a human corpse

  1. In relation to parts of a human corpse our courts have recently built upon the exception, recognised in Doodeward, to the principle that there can be no ownership of a human corpse.
  1. First there was the decision of this court in Dobson v. North Tyneside Health Authority and Another [1997] 1 WLR 596. In carrying out a post mortem examination on a woman who had died of a brain tumour a pathologist removed her brain and fixed it in paraffin, pending a possible further examination of it which in fact was never conducted. It was delivered to D2’s hospital for storage. The rest of the woman’s body was buried. Two years later the next of kin sought to examine the brain for the purpose of securing evidence supportive of their action in negligence against D1. The brain could not be found so they sued D2 for having destroyed or mislaid it. Their appeal against the striking out of their action against D2 was dismissed. In giving the only substantive judgment Peter Gibson LJ held, at 600H – 602A, that the decision in Doodeward was (at least arguably) correct; that, however, the fixing of the brain in paraffin had not been on a par with preserving it for future use as a commercial exhibit; that it had not been necessary for the pathologist to have continued to preserve the brain at any rate following the inquest; and that it had never become the “property” of the next of kin or something of which they were otherwise entitled to possession.
  1. The issue was also addressed in the Court of Appeal, Criminal Division, in R v. Kelly and Lindsay [1999] QB 621. The defendants appealed against their conviction (and sentence) for theft of human body parts which had been preserved or fixed and had come into the possession of the Royal College of Surgeons, by which they had been used in training surgeons. Their appeals against conviction, founded upon a submission that body parts could not be property and thus the subject of theft, were dismissed. In giving the judgment of the court Rose LJ said in a valuable passage at 630G – 631E:

“We accept that, however questionable the historical origins of the principle, it has now been the common law for 150 years at least that neither a corpse nor parts of a corpse are in themselves and without more capable of being property protected by rights: see, for example, Erle J., delivering the judgment of a powerful Court for Crown Cases Reserved in Reg. v. Sharpe (1857) Dears. & B. 160, 163 …

If that principle is now to be changed, in our view, it must be by Parliament, because it has been express or implicit in all the subsequent authorities and writings to which we have been referred that a corpse or part of it cannot be stolen.

…[But] parts of a corpse are capable of being property within section 4 of the Theft Act 1968 if they have acquired different attributes by virtue of the application of skill, such as dissection or preservation techniques, for exhibition or teaching purposes: see Doodeward … and Dobson … where this proposition is not dissented from and appears … to have been accepted by Peter Gibson L.J.; otherwise, his analysis of the facts of Dobson’s case … would have been, as it seems to us, otiose …

Furthermore, the common law does not stand still. It may be that if, on some future occasion, the question arises, the courts will hold that human body parts are capable of being property for the purposes of section 4, even without the acquisition of different attributes, if they have a use or significance beyond their mere existence. This may be so if, for example, they are intended for use in an organ transplant operation, for the extraction of DNA or, for that matter, as an exhibit in a trial. It is to be noted that in Dobson’s case, there was no legal or other requirement for the brain, which was then the subject of litigation, to be preserved …

 

 

England and Wales Court of Appeal (Civil Division) Decisions

B e f o r e :

LORD JUDGE, LORD CHIEF JUSTICE OF ENGLAND AND WALES
SIR ANTHONY CLARKE, MASTER OF THE ROLLS
and
LORD JUSTICE WILSON

____________________

Between:

JONATHAN YEARWORTH and others                                         Appellants

- and -

NORTH BRISTOL NHS TRUST                                                      Respondent

____________________


Hearing dates: 24 and 25 November 2008

 

 

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