A recent court case has shed fresh light on the often grim subject of the burial of the dead in Scotland – particularly where the deceased’s next of kin does not want them to be buried.
The Inner House of the Court of Session – Scotland’s most senior civil court – has recently given a decision in the case of The City of Edinburgh Council v MM (2017). Their judgment largely affirmed a previous decision regarding the burial of Mr. and Mrs. Marcel, who died in 1994 and 1987 respectively.
The unusual twist, in this case, was that the deceased couple’s son elected to store the bodies of his deceased parents at his premises on Gilmour Place, Edinburgh pending his construction of, first, a refrigerated unit at his house, and second, an above ground vault, and then finally, transporting the bodies to the West Bank in Gaza. No criminal charges were brought against the son, but this still left the issue of the two dead bodies that were, as yet, unburied.
As strange as the facts may seem, they highlight the complexity and surprising nature of some of the laws surrounding dead bodies – and indeed the differences between England and Scotland.
For instance, whilst in Scotland there is no specific legal obligation on anyone, be they an executor or next of kin, to dispose of a dead body, in England the executor is under a duty to arrange for the ‘proper disposal’ of the body. The position is further complicated by the fact that no one can be said to own a body, and there may be competing views as to how the body should be disposed of. The recent case of C v Advocate General for Scotland (2011), which concerned a dispute between a widow and the deceased’s mother as to where the deceased should be buried, shows the impact that this can have.
Separately, there was no discussion of the ‘right’ of Mr. and Mrs. Marcel to have a proper burial. Obviously this delves into philosophical questions of the ‘rights’ (or lack thereof) of the deceased, and indeed what they may have wanted in terms of a burial.
The catch all provision in Scotland, and that which was at the centre of The City of Edinburgh Council v MM, is that a local authority, in whose area someone has died or their body been found, has a positive obligation to dispose of a dead body where “no suitable arrangements” are being made.
The outcome of The City of Edinburgh Council v MM is that the court granted the local authority to bury Mr. and Mrs. Marcel, against their son’s wishes. If nothing else, the case serves as a timely reminder that people should ensure that any burial wishes that they have are clearly expressed in writing, which might serve to avoid unseemly arguments after their death.
This article is for general information only. Nothing in this article should be taken as legal advice. If you have any queries on the content of the article – whether you wish to create or update a will, or are embroiled in a dispute touching on this area – please contact us.
