If Moana was in the UK who would have the Legal rights to her body?
I have been following with so much interest and a lot of sadness the story surrounding the burial of the young and beautiful Mitchelle Amuli.
The background to her death is that she died in a very tragic car accident with three of her friends after a night out celebrating her birthday. She was burnt beyond recognition. The trauma surrounding her death has continued with a bitter battle between her parents over who should determine where and how she is buried.
So looking at this from a legal perspective particulary in the jurisdiction that I practise , the question that arises is who owns your body when you die?
Have you ever thought about who owns your body when you die ?
Have you thought about who would choose where you are buried and who would decide what type of funeral you will have ?
I personally have spoken about a lot of details about my funeral to my direct family much to their discomfort but I have not put these express wishes in my will I have just made them known. I believe that is one of the mistakes that most people make. We may talk about it and tell people but if we do not leave it expressly written in a legally valid document then it is only a wish which may not be executed by those who outlive us.
Our bodies are such an essential part of what we are it’s difficult to think of a point in the future when it won’t be our body. When we die of course we’re no longer capable of ‘owning’ our bodies. But our corpse is still in existence. It must belong to someone – doesn’t it?
This issue is not knew and there is actually a case where this issue was discussed.The case of Anstey v Mundle (2016) discusses this issue in detail..
So who does the corpse belong to ?
The answer to the question ‘who owns your body when you die?’ is both simple and rather confusing. The answer is – no one.
It is not possible legally to ‘own’ a corpse, however, certain people have authority to dispose of a body. Those people are not necessarily the persons you might imagine would have that right.
First and foremost the people who have the right to dispose of a body are the deceased’s personal representatives i.e. the executors of their Will or if there isn’t a Will the persons who are entitled under the intestacy laws to administer the estate.
There are also some people who have a statutory duty to take control of disposing of a dead body lawfully.
Arguments over the right to take control of a body are not common but might arise if there is a dispute between relatives about burial or cremation. Sometimes there may be a problem over the removal and retention of body parts for example by a hospital. In the case that has dominated the Zimbabwean Press the dispute is between whether the late Michelle Amuli known as Moana should be buried according to Islamic law as her father is a Moslem or to be buried at Zororo in accordance with her mother’s wishes. Her mother would like her burial to depict her life and the lifestyle that she lived whilst her father would like her to be buried according to his religion. The parties cannot agree and this matter has now gone before a judge who will hand down a ruling on Wednesday 25 November 2020 at 2.30pm.
The current dispute is about the funeral arrangements. Again this is not something new which has never happened.The courts have on a number of occasions been asked to intervene in disputes about the disposal of a body. In finding solutions to those problems they have laid down legal principles about funeral wishes.
In the case of Williams v Williams (1882) the court had to decide whether a deceased man’s wish to be cremated was binding on his executors. The deceased man died at a time when cremation was not legal in England and Wales.
The man left instructions in his Will that his body was to be ‘given’ to Miss Williams and he instructed her to burn his body under a pile of logs and place the ashes in a Wedge-wood jar. His executors ignored the deceased’s wishes and his body was buried instead. Miss Williams had the body exhumed and sent to Italy for cremation. She then tried to claim the expenses of the cremation from the deceased man’s executors. They refused.
The court decided that it is not possible to ‘give’ a body to anyone because a corpse can’t be owned. As a result, the court decided the executors could ignore the deceased man’s wishes and did not have to pay for the expense of the cremation.
In more recent times the courts have taken a rather different view about funeral wishes.
The legal issues surrounding the question of who owns your body when you die was considered in Valerie Anstey – v – (1) Sonia Mundle (2) Cynthia Allison (2016).
In the Anstey v Mundle case the court was asked to consider the right to arrange a burial. The case involved the family of a man who had originated from Jamaica. His last visit there had been in 1998. His Will stated that he wished to be buried in Jamaica next to his mother. The UK court concluded that the relevant factors were:
the deceased had maintained close connections with family in Jamaica who wanted him buried there;
he had expressed his wishes in his Will;
the country he was most closely connected with;
the reasonable wishes of family and friends.
The court’s conclusion was that the body of the deceased should be released to a niece in Jamaica for burial there.
The case of Anstey vs Mundle is very important .The outcome of the Anstey v Mundle case is that funeral wishes expressed in a Will should be taken into account as one of a number of factors that are relevant if there is a dispute over the disposal of a deceased person’s body.
So on balance, it’s probably a good idea to state your funeral wishes in your Will. That way, if there is a dispute the court can take your wishes into account.
I can’t stress this enough, the importance of having a will which sets out your wishes expressly.
There are many reasons why everyone over the age of 18 years should make a Will. If you neglect to make a valid will then you leave things to your family members to make decisions about your funeral arrangements .
There are migrants who are living in the diaspora who would like to be buried in their country of origin and others who would like to be buried in the new country that they live in. It is important to ensure that you write your wishes in your will and make provision for your wishes to be carried out financially.
What about where there is NO WILL?
In the absence of a will then the personal representatives will be the ones to make the decisions. So in a case like the current one where there is a dispute over where Moana will be buried and how this will be carried out if she was in the UK
English law provides a set of rules that determine who will administer an Estate and who will benefit from it. The rules are called the Intestacy Rules and are broadly designed to benefit the deceased person’s family.
The Intestacy Rules set out an order of priority of those relatives who are entitled to benefit from the Estate. Essentially these relatives are entitled to apply to be an Administrator and obtain a Grant of Letters of Administration, which would then enable them to deal with the administration. The order of priority is:
Surviving spouse or civil partner
Sons or daughters
Brothers and sisters
More distant relatives
So, for example, if the deceased died leaving behind a spouse, then that spouse would be entitled to apply to be an Administrator in priority to any other family members. What the surviving spouse would inherit depends on what other relatives are still alive and the size of the deceased person’s Estate.
If the deceased is not survived by a spouse or civil partner then any surviving children can apply to be an Administrator. If no children survive, you must work through the priority list, identifying surviving relatives who would be entitled to apply.
Once the Grant of Letters of Administration has been issued, the Administrator must follow the same procedure as if there had been a Will. This includes collecting in assets, paying tax or other liabilities and distributing the Estate..
So if she was in UK then the decision making would rest with the parents. Now this matter is complicated by the fact that the parents do not agree and cannot reach a consensus for their daughter. I suppose this is why this matter has now had to go to court.
The law of succession in Zimbabwe is governed by either customary law or general law.
When a loved one dies without leaving a valid will, the method of distribution of his or her estate is based on customary law if they lived their lives governed by customary law or governed by general law, that is legislation or common law, if they did not live according to customary law.
The Deceased Estates Succession Act is applicable to those who were governed by general law during their lifetime, particularly those married under the Marriages Act [Chapter 5:11]. The person who was governed by customary law during his lifetime, their property is distributed in terms of the Administration of Estates Act [Chapter 6:01].
To determine whether customary law applies to the Deceased person, regard is made to the nature of the case and the surrounding circumstances, if it appears just and proper that it should apply. The surrounding circumstances should include among other things the mode of life of the deceased.
I personally would have hoped that this matter could have been resolved without the need for litigation given the circumstances surrounding her death. I will be following the decision keenly.
Rumbidzai Bvunzawabaya is a Solicitor admitted in England and Wales in 2003.She is the Founder and Chief Executive Officer of Migrant Family Support, a CIC that supports Migrants of African Origin living in the United Kingdom. She practises law part time as a Consultant Solicitor.
You can contact her at email@example.com