When a person dies their personal representative (“PR”) is entitled to take possession of the body for the purpose of carrying out their duty as a PR to lawfully and properly dispose of the body.

When a person makes a will they often include instructions to their executor(s) setting out what they want to happen after their death in relation to their funeral arrangements. For example they might give directions about whether they want to be cremated or buried, or might set out more detailed specific wishes (in the will itself, or more commonly a letter accompanying the will) about the things that are important to them when they die, such as where they might want to be buried/ scattered, what type of service they would like, or even details about what people should wear or what music should be played.

It has been reported this week that Ingrid Newkirk, the founder and president of PeTA (the largest animal rights organisation in the world) has updated her will, which includes a number of creative yet unsettling directions regarding what should be done with her body after her death. These reportedly include peeling and curing her skin to make into leather fashion accessories, displaying her broken leg at the Grand National, and sending an eye to the UK Home Office, amongst many other similarly grisly directions. It is reported on the PeTA website that Ingrid Newkirk’s bodily bequests are intended to inspire animal activists, to continue to help animals and to honour her own commitment to use her body in a manner that draws attention to needless animal suffering and exploitation.

Whilst the specific directions are pretty gruesome at first glance, the update to Ingrid Newkirk’s will helps to bring the discussion around animal rights issues to a wider audience. It also raises an interesting legal question as to whether requests like these can actually be followed after a person’s death.

From a legal perspective, the starting point is that a dead body cannot be owned. This was established in Williams v Williams [1882] in which the court said “there can be no property in the dead body of a human being”. It follows therefore that a dead body cannot be gifted, bought or sold which means that, in law, a person cannot give binding directions about what should be done with their body or parts of it (although the Human Tissue Act 2004, which regulates the removal, storage and use of human tissue, permits the donation of a body or organs for medicine or science).

So, whilst Ingrid Newkirk might have set out specific instructions in her will to her executors about how she wants her body to be dealt with after her death, those instructions aren’t going to be legally binding on her executors. And if the instructions aren’t legally binding, can/ should the executors carry them out anyway? They will need to think about whether what Ingrid Newkirk wishes them to do is practical, permissible under the Human Tissue Act 2004, and legal.

If the executors are in any way unsure about how they should dispose of Ingrid Newkirk’s body when the time comes and whether they can/ should follow her wishes as set out in her will, they might consider applying to the High Court for directions, as the High Court has an inherent jurisdiction to direct how a body should be disposed of.

When making a decision about who should dispose of a body and how it should be done the court will consider a number of factors, and particularly those set out in Hartshorne v Gardner [2008] which include:

  • The decent and respectful disposal of the body without undue delay (arguably the most important factor, as a matter of public policy);
  • The wishes of the deceased;
  • The wishes of any family members; and
  • The location with which the deceased was most closely connected.

Typically, when it is deciding how a body should be disposed of, the court will make a decision at a fairly high level. For example the court might direct that there should be a cremation or a burial, or make a decision about the location of burial, but will generally be reluctant to get too involved in the micro-details, such as who should attend, or give specific details about the service itself.

However, the court can give very detailed and specific directions should it need to, as happened in the case of Oldham Metropolitan Borough Council v Makin (2018). This case concerned the funeral arrangements for the convicted murderer Ian Brady. Under his will, Ian Brady had appointed his solicitor Robin Makin as his executor. The Borough Council (in whose area Brady had died) made an application for the appointment of an alternative PR because it was concerned that Mr Makin had failed to make proper arrangements for the disposal of Brady’s remains nearly 5 months after his death. One of the issues the court had to determine was whether it could give detailed directions as to the disposal of Brady’s remains and, if so, should it do so in this case?

The court ruled that it does have an inherent jurisdiction to direct how the body of a deceased person should be disposed of. It was noted that in most cases the court would normally be deciding between the competing wishes of different parties, and would only need to decide who should be responsible for the disposal, rather than what method of disposal should be employed. However, there was no reason why the court's inherent jurisdiction over estates would not be sufficiently extensive to allow it, in a proper case, to give directions as to the method by which a deceased's body should be disposed of.

In Brady’s case, he wished for a particular piece of music to be played at his cremation, which the judge would not permit due to the legitimate offence it would cause to the families of Brady’s victims once they knew it had been played. The court ultimately directed that there should be no ceremony, no music, no flowers, no photography, with the cremation to take place out of hours in a spare cremator and with the ashes to be disposed of at sea.

That case was pretty unique on its facts and it’s clear that the court will only interfere to that level in exceptional circumstances, but it can do if necessary.

In Ingrid Newkirk’s case, even though she may feel strongly about her wishes to literally carve up her body and send the parts to various unlucky recipients, following those wishes may put her executors at risk of breaching their duty to lawfully and properly dispose of the body. It could be that some, but not others, of her requests, are permissible under the Human Tissue Act 2004; for example, a request to have her leg put on public display might be okay (provided the appropriate consents and licenses are in place), but the idea of cooking her flesh for consumption as part of a ‘human barbecue’, less so. The executors would also need to think about whether what they are being asked to do could constitute the criminal offence of preventing the lawful burial of a dead body, which is punishable by fine and/or imprisonment at the discretion of the court. It might give the executors some comfort to know that if they need guidance the court would be able to step in (if asked) to give directions about how the body should be disposed of.

Regardless of whether or not Ingrid Newkirk’s body will be dealt with as she reportedly wants it to be when the time comes, discussion of the topic now no doubt puts the spotlight on PeTA’s work and objectives (even if no one actually receives one of her body parts under the terms of her will); talking about it is arguably just as powerful as actually doing it in years to come.