11/06/2012

Make sure your wishes are carried out when you’re gone!

The recent case of Ibuna v Arroyo 2012 puts a spotlight on taking steps to ensure that your wishes are carried out once you are gone.

The case involved a dispute between the partner of a Filipino diplomat who died in London, and his estranged wife. The deceased’s partner and daughter attempted to remove his body back to the Philippines and carry out his wishes with regard to the funeral and burial arrangements. His estranged wife tried to enforce her rights under Filipino law to make the arrangements herself and intended to hold his funeral at the home that she had obtained a Court order to exclude him from. A valid Will appointed the deceased’s daughter as his Executor but a health directive also gave to his partner the power to make decisions as to the disposal of his body. The Court used its discretion to appoint the deceased’s daughter and partner as joint administrators, enabling them both to carry out his wishes.

The Law

There is no legal ownership in a dead body. After someone dies, where Executors have been appointed then they are entitled to possession of the body and are responsible for making the arrangements. If no Executor has been appointed, the person with the strongest claim under the non-contentious probate laws is appointed as administrator and has the same rights and responsibilities. Neither of these people may be who you intended to have carry out your wishes. This case states that human rights do not apply after death and that although the wishes of the deceased cannot be ignored, they are not legally binding.

What Does this Mean?

Steps should therefore be taken to ensure that your wishes will be followed. Although this case mainly applies to those who live permanently outside the UK, it highlights the importance of making and updating a Will. This is increasingly important as family circumstances become more complicated.

A Will can be used to provide express provisions that will be taken into account and to appoint the appropriate individual to make the arrangements. It is also important to update your Will if any major changes take place in your life, such as in contemplation of or after a marriage, on separation, especially if the divorce is likely to take some time, and on finalising a divorce. Unmarried cohabiting couples do not have the same statutory rights on death and whilst their position is currently being considered by the Law Commission, they will not usually be appointed to make the arrangements unless named in a Will.

The best way to ensure that your wishes are carried out after you are gone is to make express provisions for them in your Will and to keep this updated regularly.