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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 26069
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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Hi, my partner passed away couple of weeks ago. He has 3 children

Resolved Question:

Hi, my partner passed away couple of weeks ago. He has 3 children from his previous marriage. Myself and one of his sons are named as executors of his will. His will was done be a solicitor and comply with the law. I got in writing, on an informal piece of paper handwritten by him that he would like our ashes to be laid together. However there seems to be a problem with his children, they do not want to hand over the ashes.If there will be no mutual agreement between me and his children, is it any way I can obtain after probate a court order to make sure that my partner wishes are fulfilled?
Submitted: 3 years ago.
Category: Law
Expert:  Joshua replied 3 years ago.

Joshua :

Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.

Joshua :

Please accept my condolences for your loss.

Joshua :

You mention that you are a co-executor of his will with one of his sons. Is that son also in disagreement with you over your partners ashes? Who liased with and paid the undertakers?

Customer:

Thanks Joshua.Them, I had no dealings with the funeral.

Joshua :

Thank you.You mention that you are a co-executor of his will with one of his sons. Is that son also in disagreement with you over your partners ashes?

Customer:

Not really, he said that he has no religious believes and does not want to get involved.

Joshua :

Thank you. Finally who paid for the funeral?

Customer:

His children, this is only payment which I did not do.

Joshua :

Thank you. Will they be seeking payment from the estate for the cost of the funeral?

Customer:

I think so.

Joshua :

Thanks. The starting point is that the executors of an estate have legal right to the ashes by virtue of s1 Administration of Estates Act. Although obviously of enormous emotional value, ashes in law are treated like a chattel and accordingly fall under the control of the executors. Of course the difficulty here is that you are not the only executor and given that the ashes will have significant personal value to all parties concerned it may be that you would not want to take legal action yourself but as an executor you could seek a court order that the ashes are transferred to your control as an executor of the estate.

Joshua :

The difficulty here may be that if the other executor may differ from you in terms of his position and in the event of disagreement between you you could reach stalemate with you taking one position and he taking another.

Joshua :

Your partners wishes are not legally binding upon anyone and again though of significant personal importance, in law have little weight unfortunately .

Joshua :

Normally this situation does not arise where one is the executor as you have a first right to deal with the funeral personally and therefore the status of the ashes are under your control as the undertakers will pass them to you. Unfortunately here it appears that the children were given control. If you wished to apply for a court order you could do so using form N244 though it would be worth discussing the issue with your coexecutor to check he would not intervene to block the application.

Joshua :

http://hmctsformfinder.justice.gov.uk/HMCTS/GetForm.do?court_forms_id=484

Joshua :

Is there anything above I can clarify for you>

Customer:

Can the court order application be made before probate in finishes?

Joshua :

Yes you have the right to make an application as your partners personal representative by virtue of the Administration of Estates Act under the authority of his will. You do not need probate to do so.

Customer:

And the application can be blocked by the co executor of the will. Is this the correct understanding?

Joshua :

Unfortunately because executors have joint and several power to act under the will one executor can effectively block the other in respect of any action under the will. The executors have an overriding duty to the beneficiaries of the estate regarding the assets of the estate. Because ashes do not have any legal value (albeit of course have huge personal value) it is not possible to show that the other executor is acting outside of his duties if he were to block the application so in effect he could do so. Therefore if considering this course of action it would be as well to confirm he would effectively abstain should you go ahead or it may not be worthwhile considering.

Joshua :

Is there anything else I can help you with?

Customer:

Would you think that involving a solicitor will make any difference?

Joshua :

It would not make any legal difference. Sometimes it can make a difference perceptually as it can scare third parties into cooperation but a solicitor can not do anything concrete to assist her other than write letters on headed paper

Customer:

Thanks Joshua.

Joshua :

If I can assist any further as the situation develops please do not hesitate to revert to me

Joshua :

I hope you are able to reach an amicable resolultion without the need for a court application.

Joshua :

If you have no further questions for now I should be very grateful if you would kindly take a moment to rate my service to you today. Your feedback is important to me. If there is anything else I can help with please reply back to me though

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