The Good Funeral Guide Blog

You are the referee

Thursday, 15 November 2012

 

Here’s another pay-up-or-else story — true but anonymised and deliberately undated. 

A funeral director is refusing to hand over the ashes until the balance of the bill is settled — which it will be if the DSS claim is successful. 

Does he have the right to do this? 

You can’t arrest a corpse for debt because there is no property in a corpse. But what is the legal status of ashes? Are they property? This is something the 1902 Cremation Act didn’t think of, as we have seen in an earlier post. Briefly, they are and they aren’t. If they are, then the funeral director would seem to be justified in withholding them against payment. 

Except that the client’s contract, in terms of cremating the body, was with the crematorium, and the fee to the crematorium was a third-party payment paid in full by the funeral director on behalf of the client. The crematorium fulfilled its contract and presumably has the right to expect the funeral director, as the appointed collector of the ashes, to hand them over to its client. 

Other legal advice offered by solicitors in the locality favours the funeral director.

You are the referee. Is the funeral director legally and morally justified in his actions? 

(We don’t know.) 

 

 

8 comments on “You are the referee

  1. Saturday 17th November 2012 at 5:50 pm

    Jonathan – I do believe a few people have arranged funerals with me knowing they could not afford to pay. It really is almost unbelievable but the experience is genuine.

    The question I always ask myself when that happens is; why didn’t they go to a larger firm who may better able cope with non-payment? Selfish but true!

    Despite a little bad luck in this regard – I refuse to treat new clients as if they are trying to catch me.

  2. Jonathan

    Saturday 17th November 2012 at 11:36 am

    Does a garage have the right to impound my car if I don’t pay the repair bill? Does a private dentist have the right to remove my filling if I can’t fork out for his work? Not the same thing, I realize, but the principle – that the world would work better if the default position were to be nice to each other instead of nasty – remains.

    If a.funeral director can’t be nice to you when your husband has died, who can?

    • Jonathan

      Saturday 17th November 2012 at 11:42 am

      … I pressed ‘send’ before I’d quite finished:

      The simple way out for a family, given the foresight and cunning, would be to nominate one of its members to pick up the ashes in place of the funeral director. But again, if a family can’t be nice to their funeral director… I believe that what we need is revolution, not legislation. Hopelessly optimistic of me, but if you only live one life in eternity you may just as well aim for the pinnacle of human achievement. What’s to lose? (apart from some ashes).

  3. James

    Friday 16th November 2012 at 9:32 am

    Morally, no, they should be returned to the family.

    Legally, yes, the families contract is with the FD who then subcontracts services.

    What if the DWP claim is unsuccessful? Are the family not liable for the account?

    • andrew plume

      Saturday 17th November 2012 at 4:44 pm

      James

      yes those instructing the F/D will be legally responsible for the payment of the account and this is almost identical to the post which I’ve very recently made regarding an unpaid Funeralcare account

      andrew

  4. Thursday 15th November 2012 at 8:48 pm

    We have people coming to Scattering Ashes a quite lot about this issue, usually there is a dispute where one child wants rights over the step parent or some such like – sure you get the picture.

    I have spent a fair bit of time researching and blogging it. From my understanding…

    In the UK there is precious little case law on the subject (none that I have found anyway). It would appear that you can not own ashes, but you may have the right to posses them (as in the same way you could not own a body). The ashes are handed over to the person who has the contract with the crematoria, which in this is likely to be the FD even though the crematoria is a third party (the crematoria will invoice the FD).

    Do they have a right to withhold them? If they are not the property of the FD probably not, but that doesn’t mean to say the family can take them without consent either. And with the hackneyed cliché ‘possession is 9/10ths of the law’ then it would appear the FDs have the whip hand. One thing I would say is I think that the urn is the property of the funeral director, until the invoice is settled.

    As for the moral dimension, whilst the FD is currently out of pocket, and we don’t know the details – this does not appear to be the fault of the family. I would think that the FDs should hand over the ashes and seek to recover costs in the usual way – using leverage in this way does imply that they have lost their moral compass somewhat.

    BTW – in the States it would appear that that there is quasi-legal ownership.

  5. Thursday 15th November 2012 at 6:32 pm

    It is my understanding from previous reported cases that the FD must return the ashes – even if no payment is ever made.

    Understandable – but it does mean losing the one lever you hold if the client wilfully non pays. (And some do!)

  6. Thursday 15th November 2012 at 10:23 am

    At the risk of being shot down in flames, I’ll have a go at this.

    There can’t be many FDs out there that have not potentially been pretty damn close to this scenario.

    On the face of it, you’d have to be a moral bankrupt, with a serious appreciation of bad publicity to go down that particular road. Having said that though – always two sides to every story etc.

    Legally, I suppose that the FD’s terms and conditions of service (if they exist) hold prime position in any augument, together with what was said and agreed at the time of contract.

    Notwithstanding, the FD is acting as agent for both the client and the crematorium, and as such has a duty of care in respect of the ashes. It’s unlikely that his/her T&Cs give an automatic and specific right of lien.

    But, consider the ashes container, and the time/cost involved in recovering them from the crem. More chance of “legally” witholding those elements from the client, I think.

    However, if, as in all probability the return of the ashes is understood to be included in the “funeral package”, it could be argued that until this element is concluded, then the FD has not completed his/her side of the contract, and does not warrant full payment for the services provided.

    It’s a tricky one, and surely comes back to both sides knowing what is expected of each other – though where the DWP is involved, nothing can be certain.

    Easiest way out? return the ashes to the crem.

    I had a similar situation recently, but where the client assumed I would not return the ashes until the DWP paid-up. My client did receive her husband’s ashes back, though the account has still to be fully settled.

    It just underlines the confusion and desperation generated by the social fund funeral payment scheme.

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