Legal update: Who is entitled to organise a funeral?30Oct2018
When someone dies, who is entitled to claim the body and to organise the funeral？
This question was raised in the case of Re Estate of Lu Han Lung  3 HKLRD 651. In that case, the wife and eldest son of the deceased wanted to hold the funeral and bury the deceased in Hong Kong, while the deceased’s youngest son wanted the deceased to be cremated and buried in Mainland China. Because of their competing claims for the deceased’s body, the hospital had refused to release it to either camp. Therefore the wife applied for an interlocutory injunction for the release of her late husband’s body, and an order that she be allowed to organise the funeral.
In this case, the court held that the following principles are applicable:-
(a) There is no property in a dead body;
(b) A man cannot by will dispose of his dead body, and any direction by will or otherwise by the deceased on burial cannot be enforced;
(c) As a starting position, the executor named in a will or the known personal representative (if the deceased made no will) is entitled to the possession of the body and is responsible for its burial;
(d) The right of the surviving spouse or de facto spouse will also generally be preferred to the right of the children;
(e) However, this starting position can be displaced where there are special circumstances;
(f) A person with the privilege of choosing how to bury a body is expected to consult with other stakeholders, but is not legally bound to do so.
(g) The person who organises the funeral and burial cannot exclude friends and relatives of the deceased from expressing their affection for the deceased in a reasonable and appropriate manner.
Further, the court held that in approaching such applications, the court should not be entangled in lengthy adversarial hearings on the relative merits of each party’s claims. Instead, the court should identify the person with the best claim in law to the responsibility of making the burial arrangements, so that the body of the deceased may be disposed of decently and respectfully without unreasonable delay.
Lastly, while the deceased’s wishes as to funeral arrangements are not legally enforceable, the courts should take such wishes into account: Zhao Shaoyuan v Chan Mee Lin  HKCFI 1724.
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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.