RIGHTS TO CONTROL FUNERAL ARRANGEMENTS AND REMAINS OF A DECEASED

April 2026

The recent authority of Leung Kar Hin Ross and Ma Lai Fong [2026] HKCFI 383 touches on the issue as to who has the legal right to make funeral arrangements and control the disposition or burial of the remains of the deceased. Such a sad case involved family disputes about the deceased’s estate between the deceased’s wife and son, while the son was named as the executor under his Will. The son therefore claimed to be entitled to the possession of the remains and also the right to dispose of the remains and control the funeral arrangements. The deceased’s wife disputed and challenged the son’s suitability, in particular, the son’s intended arrangement of execution of an Enduring Power of Attorney, a Will and a Notice of Severance by the deceased before death.

The judge referred to the principles on determining who is entitled to possession of the body and responsible for burial laid down in Zhao Shaoyuan v Chan Mee Lin [2018] HKCFI 1724 applying Re: the Estate of Lu Han Lung [2010] 3 HKLRD 651 that the starting position is the executor named in a will or the known personal representative in intestacy is entitled to the possession of the body and responsible for its burial. The right of the surviving spouse or de facto spouse will also generally be preferred to the right of the children. However, this starting position can be displaced where the court is satisfied that there are circumstances to justify a departure from it. Such circumstances are, for example, where the prima facie entitled person is not ready, willing and able to arrange for the burial of the deceased, or in the case of intestacy, there is no surviving spouse or where no one has indicated to be prepared to apply for the administration of the deceased’s estate. A person with the privilege of choosing how to bury a body is expected to consult with other stakeholders, but is not legally bound to do so. He or she also cannot use his or her right in such a way as to exclude friends and relatives of the deceased expressing their affection for the deceased in a reasonable and appropriate manner.

The judge in Leung Kar Hin Ross and Ma Lai Fong added that if there is no dispute as to the validity of a will, the executor should have priority over the body and funeral services. However, where there is a bona fide dispute as to the validity of the will, and it is highly unlikely to resolve the dispute within an acceptable time period, the decision as to the disposal of the body had to be left to the person in lawful possession of the body as laid down in the English case of University Hospital Lewisham NHS Trust v Hamuth [2006] EWHC 1609.

In the present case, the judge considered three angles: (1) the deceased’s wife mental capability (2) the significance of the religious perspective of the funeral services and (3) the assurance to the deceased’s wife by the son that she would be able to attend the funeral services and in analyzing these factors, the judge concluded that the deceased’s wife should be the one entitled to the control of the funeral arrangements and remains of the deceased.