Contents

Chapter 23
Factors to be taken into account

Autonomy: the views of the deceased

23.4The current legal position is that the wishes of the deceased have no binding value but may be taken into account by the decision-maker to guide their actions. This means that, if the family members disagree with the deceased’s wishes, they can be easily overridden.

23.5Our proposal to allow a person to appoint a deceased’s representative provides scope for the deceased’s wishes to be given greater effect, as they are able to choose someone they trust to make the decision. Within this framework, it now falls to us to consider whether the decision-maker should be obliged to follow the deceased’s wishes as a matter of course and the limitations on following those wishes.

23.6Contemporary understanding of the importance of personal autonomy suggests that the deceased’s wishes should strongly influence the decision and that it should be rare for them to be departed from. A person should be able to express their autonomy in making decisions about how their death should be commemorated and where their body should be buried or cremated.

23.7Modern case law is increasingly giving greater weight and importance to the wishes of the testator. The effect is that the testator’s wishes should be given effect to unless there is a compelling reason not to do so. This approach accords with contemporary understanding of the autonomy of the individual. Legal scholars such as Conway and Nwabueze argue that burial directions should have binding force on the basis that this reflects the importance that is placed on individual autonomy.466
23.8In a number of cases and also in written commentary, Munby LJ has considered the importance of the wishes of the individual. In a widely cited case Re M,467 relating to mental incapacity, Munby J, as he then was, noted the importance of individual autonomy:468

[T]he weight to be attached to P’s wishes… will always be case-specific and fact-specific. In some cases, in some situations, they carry much, even on occasions, preponderant weight…the nearer to the borderline [of capacity] the more weight must in principle be attached to P’s wishes and feelings.

23.9In the same case, Munby J referred to a person’s interests following death:469

Best interests do not cease at the moment of death. We have an interest in how our bodies are disposed of after death, whether by burial, cremation or donation for medical research.

23.10This passage has been widely cited by scholars in support of the proposition that a person ought to be able to determine the nature of their funeral arrangements and where the disposal of their body is to be undertaken.470
23.11In D v R, Henderson J referred to the rights of testators “to make testamentary dispositions which are unreasonable, foolish or contrary to generally accepted standards of morality”.471 This was seen by the Judge to be as “basic human right”.472

23.12There is clearly a greater expectation now than previously that a person ought to have a greater control than the law presently allows in how they are to be commemorated after death and how their body shall be disposed of. The present law is out of step with that expectation.

23.13We consider that, where the deceased person has expressed their wishes in writing, the statute should require the decision maker to give effect to the wishes of the deceased unless they are satisfied that there is a compelling reason not to do so. If the deceased person has expressed their wishes but not in writing, the decision maker must still take these into account but is not bound to give them effect.

23.14The intent of our recommendation is that the law should give more authority to the wishes of the deceased expressed in writing before death, whether through a will or otherwise. A person ought to have a reasonable expectation that their wishes as to what should happen on their death in respect of their funeral and the disposition of their body will be followed. Provided such directions are not unreasonable and will not impose an unreasonable cost relative to the size of the person’s estate, the executor, deceased’s representative or family member assuming responsibility for post-death decisions would be expected to carry them out.

Recommendations

R114 The statute should require that, where a deceased person has expressed in writing his or her wishes relating to funeral arrangements, disposal of their body or handling of their remains, the person making the decisions about those matters must give effect to those wishes unless satisfied that there is a compelling reason not to do so.

R115 Where a deceased person has expressed such wishes but not in writing, they must be taken into account by the person making the relevant decisions.

466Conway, above n 425; Nwabueze, above n 425.
467 Re M (Statutory Will) [2009] EWHC 2525 (Fam); [2011] 1 WLR 344.
468 At 352.
469 At 353.
470 See AJ McGee and BP White “Is providing elective ventilation in the best interests of potential donors?” (2013) 39 J Med Ethics 135.
471 D v R [2010] EWHC 2405 (Fam); [2011] WTLR 449 at [39].
472 At [39].