The law and a deceased person’s remains, what happens when there is a dispute?

The recent case of Leung Kar Hin Ross v Ma Lai Fong[1] (“Leung v Ma”)   case link has provided important reminders for families dealing with the passing away of loved ones, particularly around who has the legal right to make funeral arrangements and control the disposition or burial of a deceased person’s remains. This topic frequently arises in probate disputes and family conflicts, and understanding the law can help avoid deeply emotional disagreements.

Leung v Ma

The Hong Kong Court was required to resolve a difficult and sad dispute between Leung (the son) and Ma (his mother). The dispute concerned who should be given the right to dispose of the remains of the deceased husband and father (the “Deceased”), as well as control of the funeral arrangements.

During an illness before his death, the Deceased, while separated physically from Ma by their children, executed various documents including an Enduring Power of Attorney, a Will and a Notice of Severance (to sever property rights of the family home with Ma). It was also alleged by Ma that the Deceased had removed funds totalling over HKD7.5million in the months before his death and that Leung has refused to account for the missing funds. Ma questioned testamentary capacity and made various other allegations to form the basis of her cross-application. There were clear and ongoing disputes between Leung and his siblings which formed an important background to this case.

The Deceased had named Leung as executor in his Will, and as such, Leung claimed to be entitled to, possession of the remains, to dispose of the remains and to control funeral arrangements. However, Ma challenged Leung’s suitability to do so. In particular, she pointed to Leung’s “lack of genuine commitment acting contrary to [the Deceased’s] religious wishes,” his systematic isolation of Ma and other relatives from the Deceased in the days before his passing, and her concerns that she might not be informed of relevant funeral services due to the lack of trust between them.

The Court ruled that, although the “starting point” for such disputes was that the executor under a will shall be entitled to possession of the remains and be responsible for burial and funeral arrangements, Ma’s concerns were valid and real and that her points were sufficient to constitute “overwhelming circumstances to depart from the starting point”. The Court conveyed Ma both possession of the Deceased’s remains and the right to arrange for the relevant funeral services, to “achieve proper respect and decency” for the Deceased, as well as to prevent “irreparable”deprivation on the part of Ma and other relatives were they to miss any funeral services.

In ruling the above, the Court delivered a powerful and crucial reminder that appointment of an executor is not final, and the Courts retain discretion to redirect the right to possession of a deceased person’s remains and to control their funeral arrangements.

Sadly, it appears clear that there are many questions to be resolved around the circumstances of various documents executed before the Deceased passed, meaning the Will may be challenged, and litigation may continue.

Common law

There are both moral and practical reasons for the laws governing disposition of a person’s remains. Courts in Hong Kong still rely heavily on long-established common law principles as noted by Baroness Hale in Kerr v Department for Social Development (Northern Ireland) [2], “…we all have an interest in securing the decent burial of a dead body. It is disrespectful, as well as a hazard to public health, if this is not done in a prompt and seemly manner. Hence there is a common law obligation, “in the nature of a public duty, to arrange for [proper burial arrangements].”

The seminal case in this area of law is Haynes’ case [3], where it was established that a corpse is not capable of property ownership. In this case, when the Court considered the Defendant Haynes’ taking of several sheets off the bodies of some corpses, it ruled that Haynes was liable in theft to the executor of the deceased persons, as opposed to the deceased persons/corpses. This was because the corpses could not be the owner of the any property, such as the sheets. The sheets in question were ultimately held to be owned by the corpses’ executor.

Hong Kong law

The Haynes’ case principle still holds in Hong Kong. In Re Estate of Lu Han Lung [4], the Hong Kong Court set out what are now known as the “Lu Han Lung Principles” governing who should be entitled to the remains of a deceased and its burial. In Leung v Ma, the Court summarised the essentials of these principles as stated below (by way of citing Zhao Shaoyuan v Chan Mee Lin [5] then adding further observations):-

• There is no property in a corpse;

• A man cannot dispose of his corpse by will, and any direction by will or otherwise made by the deceased on burial cannot be enforced, and is void;

• As a “starting position”, the executor named in a will (or the known personal representative in testacy) is entitled to possession of the body and responsible for its burial, whilst the right of the surviving spouse or de facto spouse will generally be preferred over the right of any children;

• That said, the starting position can be displaced if the Court feels it is justified – examples given included where the entitled person is not ready, willing, or able to make the relevant arrangements;

• A person who is granted the “privilege” of choosing how to bury the body is expected to consult with other stakeholders but not legally bound to do so. He or she is also not to use their right in a way that will exclude friends and relatives of the deceased from the service;

• The Court should not make lengthy, adversarial hearings to resolve related matters, and look to identify the person with the best claim in law to take responsibility of making the burial arrangements, such that the remains are disposed of with all proper respect and decency, and without delay if possible; and

• The Court will try to arrive at a “practical and fair” solution that does what it can to give effect to the deceased’s wishes in respect of religious and cultural factors (but only if such can be ascertained without the need to resolve the dispute on the evidence).

Courts favour executors

The Hong Kong courts generally give priority to deceased’s personal representative and executor or administrator the right to arrange burial. In Sum Siu Mui v Ho Sui Chun [5], upon a dispute between the de facto wife Plaintiff and executor Defendant (on the location of the grave and choice of contractor to hire to arrange the burial), the Court ruled in favour of the Defendant, stating that, as executor, the Defendant had both the right to bury and the rights over the grave.

Similarly, in Cheung Hong Mui, the personal representative of the Estate of Lam Kwan Hung, Deceased v Lam Mo Sze [6], the Defendant was the intestate deceased’s daughter. The Defendant had handled many of the deceased’s intestate affairs (e.g. death certificate, funeral and burial). However, it was the Plaintiff – the deceased’s wife – who was formally appointed administrator years afterwards. In the following years, the Defendant attempted to arrange for the deceased’s remains. The Plaintiff objected and applied for a court order to grant her permission to deal with them instead. The Court ruled in the Plaintiff’s favour. Citing the Lu Han Lung Principles, the Court noted how the Plaintiff had been granted the Letters of Administration in respect of the deceased’s estate, which would make her the “proper person entitled” on the burial arrangements, despite the Defendant’s daughter’s previous contributions.

However, as we can see from the Lu Han Lung Principles (as set out above by Leung v Ma’scitation of Zhao Shaoyuan v Chan Mee Lin), although the “starting point” is for the courts to favour executors, this can be overturned depending on the circumstances of the case. For families where estrangement, second marriages, blended families are involved or questions of testamentary capacity exist, arrangements can be particularly vulnerable to dispute.

Same-sex spouse rights

In the Court of Final Appeal case Ng Hon Lam Edgar v Secretary for Justice and Li Yik Ho and Secretary for Justice) [7], the Court considered inheritance rights of same-sex couples obiter, the case also considered that Li had not been permitted to identify his partner Mr. Ng’s corpse at the public mortuary.

Whilst the case was settled, the Court took the chance to restate Hong Kong government’s declared position on corpse identification:-

• There is no policy in Hong Kong that distinguishes between opposite-sex couples and same-sex couples for body identification arrangements with the public mortuary or the forensic pathology service;

• There is no policy of the Corner’s Court which denies any rights or gives differential treatment to same-sex spouses of a deceased person;

• The Food and Environmental Hygiene Department policy is to not exclude the right of the same-sex couple of the deceased to handle cemetery and crematoria services, nor is there any policy and internal guideline for said department that prohibits the department from providing after-death arrangement services to the same-sex spouse of the deceased (and there is no restriction that the spouse of the deceased making the application must be one of the opposite sex); and

• There is also no policy at the Immigration Department which denies a person to apply for a certified copy of a death certificate due to their being a same-sex spouse of the deceased person.

Notably, the Court stated that there is no distinction between same-sex and opposite-sex spouses for the term ‘spouse’ under schedule 2(1) of the Coroner’s Ordinance (Cap. 504). Following this, and pending any framework change from the Hong Kong government, the intestacy and family provision statutes must be read so that a surviving same‑sex spouse lawfully married overseas is treated in the same way as an opposite‑sex spouse for the purposes of inheritance and dependency provision. This is significant for same‑sex couples in Hong Kong planning their estate arrangements.

Alternative disposition

For those so inclined, Hong Kong’s Medical (Therapy, Education and Research) Ordinance(Cap. 278)allows for a person’s remains – or individual body parts – to be subject to donation for regulated uses of deceased muscle tissue. Several medical schools in Hong Kong have ‘whole body donation’ programmes where donated cadavers are used for dissection, medical education, and preparation of permanent specimens. The remains are either returned to the family after 2 years, cremated at the school’s expense and scattered in a memorial garden, or retained as a permanent specimen. These remains receive the utmost care and dignified respect as per their contribution to science and the training of Hong Kong’s next generation of medical talent. This alternative can be part of a broader estate and end‑of‑life planning strategy.

Conclusion

Couples and families, whether married, or unmarried should consider making clear, early arrangements for the disposition of remains and funeral wishes. Doing so helps minimise family disputes. However, Leung v Ma serves as a reminder that even well drafted wills may not be the final word on who controls funeral arrangements. Courts retain discretion to reassign those rights where fairness and respect require it.

Joanne Brown

For advice on family law, probate disputes, will challenges, or disposition arrangements, please contact:

Joanne Brown

Partner | Email

Adrian Au

Partner | Email

Eddie Look

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Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.

[1] [2026] HKCFI 383

[2] [2004] UKHL 23, [2004] 1 WLR 1372

[3] (1614)

[4] [2010] 3 HKLRD 651

[5] [2018] HKCFI 1724

[6] [2021] HKCFI 1585

[7] [2011] HKCU 1142

[8] [2024] HKCFA 30