Funeral wishes: don’t take them to the grave

Published on
3 min read

Following a three-year legal battle between the mother and wife of a deceased soldier, we highlight the importance of communicating your funeral wishes, to make what can often be a difficult decision for your loved ones as straightforward as possible after you are gone.

The last thing we want to leave behind when we are gone is the potential for a feud to erupt over our funeral. Sadly, and all too publicly, this was the case when Private Mark Connolly died in 2011.

The background

Connolly grew up in Fife and joined the Army in 2005 at the age of seventeen. In 2007, he met Stacey and they went on to marry in 2009. Just one month later, Connolly was notified that he would be sent on a tour of duty to Afghanistan. Not having made a will, Connolly was issued with an Army pro-forma will. He was wrongly advised by his Platoon Sergeant that the beneficiary was the next of kin and the executor a person who paid the debts and funeral expenses. Crucially, he was told that the same person could not be both. Connolly signed the pro-forma naming his wife as the beneficiary, and his mother and brother as executors. In June 2009, Connolly suffered shrapnel injures and returned to the UK for treatment. While at home, preparing to return to active duty, Connolly decided he would leave the Army and settle with Stacey once he was able to do so. He died in May 2011 after a bar fight in Germany.

Stacey intended to be buried in Forfar with her brother, and Connolly had intimated that he wished to be buried with her. However, his mother intended him to be buried in a family plot in Fife. When his mother was informed of a wish that all attendees to the funeral in Forfar were to wear bright colours, she took offence and started legal proceedings. A Ministry of Defence body took advice and determined that the body should be released to Connolly’s mother and brother as executors. Stacey then started her own proceedings.

What transpired was a protracted legal battle over where the body should be put to rest, which took over three years to be resolved. Throughout this time, Connolly’s body had to be held in a London morgue.

The legal case

Three years later in June 2014, Lord Brodie found that, on the specific facts, Stacey should be allowed to decide on the funeral arrangements. Connolly was buried in Forfar under a cloud, as his mother and wife argued at the grave. Police officers had to break up scuffles during the full military burial.

While this is a fairly unique set of circumstances, it does highlight an important point when planning for your death: clarity is key. A simple letter of wishes could have prevented the soldier’s body from lying unburied for three years and avoided a bitter family dispute.
 

English Law

This case grabbed the headlines but was decided by the Scottish Courts, so what is the position in England and Wales? Here, the basic rule is that there is no property in a body – so beneficiaries of an estate have no right to it. However, personal representatives and certain other persons (such as the coroner, where an inquest is required) have a duty to dispose of a body. In the case of dispute, the court will use its inherent jurisdiction to decide who should have control of burial arrangements.

Personal representatives are not legally bound to follow any known funeral wishes – but it is nonetheless sensible to communicate these, either in or with your will or directly to family members, to avoid disagreements or misunderstandings about what you wanted.

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