Analysis: burial instructions may not necessarily be fulfilled given the law in some jurisdictions

The loss of a dear one is a huge change in circumstances and is a rite of passage in everyone's life. Death and the bereavement process have recently come to the forefront as topics for hot debates around societal, cultural and emotional consequences. The loss of a close one cannot be comprehended in isolation as it also carries societal perceptions and is subject to underlying cultural norms.

Funerals play an important role in society in comforting those who are left behind. Aside from providing a process for the correct disposal of the body, it also marks the social death of a person. Depending on the culture and religion being observed, it may serve to transfer the soul to a 'better place’. It provides structure to near and dear ones at a time of difficulty and brings the community together to provide support for the grieving. Funerals are a way of reinstating the balance of the group caused by the loss of a community member by providing an opportunity to mourn the departed.

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From RTÉ Radio 1's Brendan O'Connor Show, poet Enda Wyley and Aslan's lead singer Christy Dignam on coping with loss.

In a way, death amends human relationships. They may even threaten stability and disrupt routines on which normal family life may have previously been anchored. The dead body becomes an important symbol of what once was and further becomes the centre of focus for all forms of emotions. It has been argued that modern Western society finds it especially hard to process death and bereavement.

In the Book of Genesis, Jacob asked only one thing on his deathbed of his son, Joseph, and that was to be buried alongside his ancestors in his homeland, Canaan. In specifying his burial instructions, he passed on the power of his autonomy to his son.

Burial instructions are often taken to be the posthumous manifestation of oneself. They can be driven by a variety of factors, most of which may find reason in individual sentiments and preferences. However, individual instructions may not necessarily be fulfilled given the law in some common law jurisdictions.

'No property' rule

Under the English system of posthumous burial instructions, an individual cannot determine the fate of their remains. This comes from the 'no property rule' from the 17th century that said that no property could be found in the dead body. The final decision to respect the wishes of the deceased lies with the person ultimately responsible for burying the deceased. A similar system is also followed in Ireland.

Under the English legal system, a social scale of persons exists who may be responsible for this duty. This hierarchy is established keeping in mind the will of the deceased. In the case of an intestate death, it may be determined on the basis of the closeness to the next of kin and other potential relations. It is interesting to note that, even with the existence of the no property rule, burial duties are determined by the same succession law that determines the distribution of property of the deceased after their death.

The executor of the will is tasked to carry out the wishes of the deceased

In most cases, the appointment of an executor protects the wishes of the deceased from being disregarded. Even if the family tries to disregard them, the executor may seek judicial support to prevent it from happening. In the past, there have been cases where such a system led to situations where the dead body remained unburied until all the parties involved had reached a compromise. However, public health requirements mean that a corpse should be disposed speedily, especially to prevent the spread of any disease resulting from the decaying of the body.

Pre-paid funeral plans are fast becoming a popular choice for individuals as they cover the cost of the burial and take into account the specific wishes of person. As the contract between the individual and the funeral home is only activated on death, there is a possibility that it may not necessarily be followed, as the individual has obviously no control over the actual execution of the contract.

Again the executor of the will may be tasked to carry out the wishes of the deceased, but the funeral home are under no such legal obligation to actually follow through on the pre-paid funeral contract. Where the plans for the last rites end up being more expensive than the amount allotted by the deceased in those circumstances, the executor may be held personally liable for the difference in the costs.

The views expressed here are those of the author and do not represent or reflect the views of RTÉ