Dealing with the death of a loved one is an emotionally taxing experience, even in the best of circumstances, but it is especially challenging when family members disagree over how to handle the corpse. As public attention shifts to environmental concerns, we pose the following question: Is the growing trend of “green burials,” and in particular the aquamation process, the beginning of a whole new spectrum of family disputes, and what can executors and beneficiaries do about it?
What exactly is aquamation?
Aquamation, resomation, alkaline hydrolysis, and biocreation are all names for cremations performed in water.
Resomation and Aquamation are brand names that were created by the companies that created and pioneered the technology. Resomation is the most extensively adopted technology for water cremation in the world to date. Resomation requires four hours, while aquamation may take up to fourteen.
In a large chamber containing heated water and an alkaline chemical, the body is immersed. The chamber’s pressure prevents water from bubbling, but temperatures can reach 160 degrees. The combination of water, heat, and chemicals results in the dissolution of the body’s tissues and lipids. The remaining bones are then powdered and returned to relatives as if they were remains.
Why would someone choose cremation by water?
Archbishop Desmond Tutu passed away on December 26, 2021, at the age of 90. He requested a water cremation because it is more environmentally beneficial than a fire cremation. According to the UK-based company Resomation, water cremation uses five times less energy than flame cremation and reduces funerary greenhouse gas emissions by approximately 35 percent.
With a water cremation, the body is placed immediately into the cremation chamber containing water. This eliminates the need for a coffin, which is typically manufactured from natural wood resources and, when buried, occupies land space and decomposes slowly.
Is water cremation offered in the United Kingdom?
There are no laws prohibiting water cremation in the United Kingdom, but the procedure requires facilities that cost approximately £300,000 to install. Currently, it appears to the authors that neither councils nor cremation services in the United Kingdom have purchased such a facility, but it is anticipated that private clinics offering this service will arrive in the United Kingdom within the next few months or years.
What is the cost of a water cremation?
In the United Kingdom, a direct flame cremation costs approximately £1,600 and a flame cremation with a modest funeral service costs approximately £4,000. It has been estimated that in the United Kingdom, a water cremation could cost within this range; however, if aquamation necessitates international transport, the costs are likely to be substantial.
Body disposal: the law and how Aquamation comes into it
There is no ownership property in a deceased person. Common law, however, imposes the obligation to ensure its appropriate disposal. This responsibility falls predominantly on the personal representatives of the decedent (see Williams v. Williams (1881) 20 Ch. 659; Rees v. Hughes [1946] K.B. 515). An executor named in a will may obtain possession of the body for this 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 a grant of Probate has been issued. If there is no executor, the same duty falls on the administrators of the estate; however, they may not be able to obtain an injunction for delivery of the body prior to the issuance of letters of administration (see Dobson).
Buchanan v. Milton, 2 FLR 844 (1999), per Hale J.
According to Hale J’s ruling in Buchanan, a corpse is not property and cannot be possessed by anyone. However, because there is a duty to dispose of a body appropriately, the person with this duty can demand possession of the body in order to fulfil it.
In the absence of a court order, the responsibility to dispose of the body falls in the following order:
If a genuine will exists, the executor(s) named in the will.
Where there is both an intestacy and letters of administration, the administrator(s) named on the letters of administration shall be the executor(s).
Where there is an intestacy but no Personal Representatives have been appointed, the person(s) with the highest right to take out a grant will be determined in accordance with section 46 of the Administration of Estates Act 1925 and rule 22.1 of the Non-Contentious Probate Rules 1987.
The owner of the residence where the deceased passed away or the individual in actual possession of the body (often a hospital or coroner).
In the absence of any of the aforementioned, the local government.
The rule that a body cannot be owned by anyone applies to the Deceased as well. Therefore, while the deceased may expressly state in his will that he wishes to be aquamated, there is no rule or law mandating that these wishes be carried out.
Potential for disputes
When there is a dispute between personal representatives, partners, or other family members regarding how to dispose of a body, the customary route to court is an application pursuant to section 116 of the Senior Courts Act 1981 for a Grant limited for the purpose of disposing of the body.
Typically, the court will not issue an order dictating how the body should be disposed of but will instead consider competing proposals and select the recipient of the limited grant. The following factors will be taken into account when making this choice:
the wishes of the deceased, the reasonable needs and desires of the bereaved family, the location with which the deceased was most closely associated, and perhaps most importantly, that the body be disposed of with proper respect and decency, and if possible, without further delay.
Disputes of this nature are typically predicated on where a body should be laid to rest (for a recent example, see Pangou v. Nzoulou [2022] EWHC 147), but disputes regarding how the body should be disposed of follow similar patterns.
Despite the fact that in the majority of cases, burial or cremation is the only option, disputes can arise over whether other methods of disposal should be utilised, particularly when religious observance dictates a particular form of disposal. With aquamation, there is currently the added complication of transporting the corpse overseas.
My father desired an aquamation, and I am one of his executors. What am I to do?
As personal representative, you are obligated to act in the best interests of the estate and administer its affairs. This includes a prompt and effective disposition of the organism.
The wishes of the deceased will undoubtedly be given considerable weight by the court, especially if they can be demonstrated in plain, uncontested writing. The best way to accomplish this is through a will, but the court will accept any evidence (including oral testimony from witnesses if necessary) regarding how the corpse should be disposed of.
Nonetheless, an executor must also serve the estate’s beneficiaries. The cost of disposing of the deceased’s body is an estate expense and is generally deductible from the inheritance of the heirs. Aquamation is presently unavailable in the United Kingdom; therefore, additional expenses must be incurred for transportation to a country that provides this service, including the cost of a private ambulance, plane travel, and collection and storage abroad. Additionally, international air travel necessitates burial transport permits and other bureaucratic requirements.
The costs associated with this procedure can be substantial, especially in the context of smaller estates. Given the risks that personal representatives face in their role, including their obligation to account to the estate from their personal funds for improperly incurred expenditures, it is not surprising that personal representatives, without the consent of all beneficiaries, frequently seek the court’s approval before taking actions that could otherwise subject them to criticism and financial liability.
If a Personal Representative faces opposition from all of the beneficiaries, either the body should be disposed of more cheaply through other means (in accordance with the beneficiaries’ unanimous wishes) or the Personal Representative should apply to court under CPR64’s supervisory powers.
My brother, the Executor, is a firm believer in reducing our carbon footprint and he thinks aquaculture is a fantastic concept. He desires that my father be aquamated, but I assert that my father preferred to be interred. What should I do?
In this scenario, a litigant should be gathering evidence of the deceased’s desires and preparing an emergency court application. The Court’s ability to issue a Grant limited to the disposal of the body enables it to supervise the disposal of the body without affecting the remainder of the administration of the estate. In addition to the aforementioned factors, the court may also consider the cost of aquamation.
Disposal disputes are “hostile litigation of the normal sort” (Anstey v. Mundle (2016) EWHC 1073), and as a result, costs, which can be substantial, generally follow the event.
The conclusion
It is anticipated that the rise of ecological alternatives to traditional burial and cremation will lead to an increase in disputes over the disposal of bodies. As with all estate disputes, addressing these issues prior to death is the most cost-effective method to avoid expensive litigation. Sincere and open communication between testators and their families, as well as, if possible, prepayment of funeral arrangements, will increase the likelihood that these wishes are carried out. If a will-maker desires relocation abroad or a particular process, whether “green” or not, then the more steps taken during life, the more likely the estate will be able to avoid distressing and costly steps after death.
