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Death disputes and next of kin

Probate practitioners can frequently find themselves in the thick of a dispute between friends and family members when a person dies.  There are many occasions when we hear the words ‘But, I ‘m the next of kin, I have rights.’


However, this is a common misconception.  ‘Next of kin’ in law tends to only apply for persons under the age of 18 years.  In this instance there is such a thing as a next of kin, for minors this is their parents.


For persons over 18 years of age a next of kin typically refers to the person who is their closest relative.  However, when a person dies the term ‘next of kin’ has no relevance and is not applicable and such a person has no special rights to determine matters regarding the deceased.  Rather the law recognises the person with authority is the named Executor or if intestate (dying with no will in place) then the person or persons with authority under the Rules of Intestacy.


This means it is the responsibility of the Executor or party with authority under the Intestacy Rules to deal with funeral arrangements and disposal of the body.  Case law on the subject includes Buchanan v Milton 1999 2 FLR 844 and Burrow v HM Coroner for Preston 2008 2 FPR 1225.


Unhelpfully there are complications with regards to cremated ashes.  Both an executor and/or a relative can apply for a cremation of a body under the Cremation (England and Wales) Regulations 2008 and the Cremation (England and Wales) (Amendment) Regulations 2016.  The ashes can under these rules be released to the Applicant meaning you could have a situation where an Executor is named in a will, but that person is different to a relative whom books the cremation and then collects the ashes and for example arranges disposal of the same as they wish and not per any instructions the deceased may have given in a will or a letter of wishes.  Unfortunately, the current rules offer no help and can often lead to a situation where the courts are asked to intervene and determine the issue.


It is certainly possible for the courts to assist, and they have in the past given detailed orders as to arrangements that should be followed where a dispute arises.  Of course, solicitors can assist in such matters and will be particularly useful in aiding parties with pre action disclosure and negotiation to try to avoid court action where possible.


If you need help or advise on such issues, we would be happy to assist.  Call Adccock’s Private Client Team today 01543 442101 or email Head of Department Kerry Davies

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