Burial disputes: How are these resolved by the Courts in England and Wales and what can happen in respect of executors’ costs?

Background

The case in question, Patel v Patel [2025] EWHC 560 (Ch), concerns the funeral arrangements for the late Bhikhubhai Rambhai Patel ("the Deceased"), who died on 30 December 2024.

The Claimant in the proceedings was Anilkumar Patel, who is the son of the Deceased. The first Defendant was Jayaben Patel, who is the daughter of the Deceased, and the second Defendant was University Hospitals of Coventry and Warwickshire NHS Trust, where the body of the Deceased was being held. Both the Claimant and first Defendant were appointed as executors and trustees of the Deceased’s Last Will & Testament dated 22 December 1993 (“the 1993 Will”). 

Under the terms of the 1993 Will, the Claimant and the First Defendant were left equal shares of the residue of the Deceased’s estate. 

Prior to his death, the Deceased had lived in England for 70 years, having left Gujarat in India when he was 23 years old and, whilst he owned a flat in India which was used by family, his last visit to the country was in 2003. Sadly, the Deceased suffered with long term health issues and from 2007 he was on renal dialysis three times a week. This, along with other health issues, meant that the first Defendant essentially became his full time carer. The first Defendant also cared for her mother, the Deceased’s wife, who suffered with her own medical issues. The Claimant, on the other hand, lived in Canada. 

The dispute did not concern the validity of the 1993 Will, instead concerns were raised in respect of the Deceased’s funeral arrangements. The Claimant wanted the Deceased’s body to be cremated and his ashes scattered in England, whereas the first Defendant wanted the Deceased’s body to be taken back to India and buried. As the parties were unable to reach an agreement and the impasse continued, an application was made to the Court for assistance. 

What did the Claimant want?

The Claimant sought directions from the Court in respect of the following: 

• that the second Defendant release the Deceased's body into the custody of the Claimant or his nominated representatives (such as funeral directors);
• that the body of the Deceased be cremated and the ashes scattered in accordance with Hindu funeral rites;
• such further orders as the Court considered appropriate or necessary; and
• provision for the costs of the claim.

Other Evidence

The overriding sentiment from additional family members was that the Deceased's body should be cremated and the ashes scattered in England in accordance with Hindu rites. This is what the Claimant arranged for his mother’s funeral, for which he said his father had expressed gratitude and a wish for the same Hindu funeral rites to be carried out when he died, including cremation.

The only family member that took a different view was the first Defendant, who said that in the last months of his life her father often said he wanted to die in India or, if he died in England, he wanted his body to be taken to India and buried there. In giving her evidence, the first Defendant emphasised that she only wanted to honour her father’s wishes rather than to express her own preference.

Discussion

HHJ Paul Matthews (“the Judge”) found that both the Claimant and first Defendant were being as helpful as they possibly could to the court, telling what they believed to be the truth, and neither were deliberately trying to mislead the Court.

Both parties made valid and fair points, for example, the Claimant noted how unlikely it was that the Deceased wanted to be buried, as he was a Hindu, while the first Defendant cited her father’s independent personality and the fact that burial is not unknown in India. However, as there was nothing in writing from the Deceased stipulating his express wishes, the Judge was unable to ascertain his real wishes and these could not be taken into account by the Court.

The Judge also took into account that, while the Deceased undoubtedly held much affection for India, England was his home and the place where he spent the majority of his life. Also noted were the facts that the Deceased’s body had still not been put to rest three months after his death, and that transport to India would further delay this, likely be more costly, and could present barriers to some family members attending the funeral.

Ruling

The Judge ruled in favour of the Claimant, stating that the body of the Deceased should be cremated and his ashes scattered in England in accordance with Hindu rites.

Interestingly, the Judge added that, had he discovered that the Deceased’s wishes were in fact to be buried in India, he would have made the same judgment. His reasons for this were multiple:

• The Deceased's views as to how his body be disposed of are not legally enforceable;
• The Deceased’s body would not have been able to lie in the part of Gujarat that he was from;
• The majority wishes of the wider family count for a lot, as it is them who need to grieve, remember, and seek comfort and closure from a funeral; and
• The pull of the country with which the Deceased had the greatest connection is strong, and it was clear to the Judge that this country was England.

The Judge had no reason to believe the first Defendant would fight this ruling, so the order was for the  Deceased’s body to be released to both the Claimant and the first Defendant jointly. No order was made as to costs and the Judge decided that the costs of both the Claimant and the first Defendant should come out of the estate, to be assessed on the indemnity basis. 

The Judge confirmed that his reasoning for making the above order as to costs was because, if an order was made that the first Defendant was to pay the Claimant’s costs, she would have an indemnity out of the estate for what she pays. If the first Defendant had incurred costs of her own, she would also be entitled to those costs out of the order. As such, by making no order as to costs, both parties were entitled to claim their costs from the estate which was seen as fair. 

Legal commentary – why is this case important?

This case is an interesting and unusual one, the like of which is rarely reported upon. It is positive that the Court was able to make an order which entitled both the Claimant and the first Defendant to retain control as to the Deceased’s estate, including his body, and that neither were removed from their roles as executors and trustees. 

However, what was uncommon in this case is that both parties were able to claim their costs from the Deceased’s estate. Whilst executors and trustees are usually entitled to do so, this rule applies to when they adopt a neutral approach and do not play an active role in litigation. As can be seen from the above, the reason an application was made to the Court was because the Claimant and the first Defendant had reached an impasse and could not agree as to how the Deceased’s body was to be dealt with following his death. 

In this case, both parties did not adopt a neutral approach, and therefore it was possible that the Court may have ordered that they were responsible for settling their own costs from their own personal funds, or in the alternative, that the losing party cover their own costs plus a percentage of the costs belonging to the winning party. 

Whilst the Court may not have adopted the standard rule in this case, it still serves as a reminder that litigation is often unpredictable and executors should remain mindful of the potential costs sanctions they may face before deciding whether to become engaged in litigation. 

Separately, this case also serves as a useful reminder to individuals who are creating or updating their Will to consider including wishes as to how they wish for their body to be disposed of following their death, even if such wishes are not binding, and to consider whether it would be beneficial to appoint a neutral party or professionals as executors of their estate rather than family members. Whilst it can sometimes be cost effective to appoint family members, by doing so, there is also an increased risk that they may not be able to work together effectively, which may result in parties having to engage in alternative dispute resolution (“ADR”) or having to turn to the Court for assistance.