Ashes to ashes

Sat 27 February 2021, Philippe Ropenga Funeral

The date of a very recent case decided by the Court of Appeal of Poitiers¹ in France has inspired the title of this post. You know from a previous one² that the organisation of funerals is a fundamental freedom in French law that is protected by a statute that dates back to 1887.³ Not everyone however leaves clear instructions regarding his remains. An heir may change his mind about what to do with the ashes after cremation. One person is qualified under French law to decide the location of the cinerary urn or that of the scattering of ashes.⁴ Comparing this case with a recent one decided by the French Cour de cassation⁵, i. e., the supreme court that deals with civil, commercial, and criminal matters helps to determine who the qualified person is.

The Court of Poitiers states that the heir who has lived with the deceased, has taken care of her and has been designated by her as the entrusted person⁶ during her stay at the hospital was qualified to decide what to do with her ashes. The fact that the document that designates the entrusted person has not been signed by the deceased does not makes this piece of evidence irregular because the fact that the hospital drafted it according to the patient's statement is beyond dispute. Furthermore, the Court of Appeal also notes that the heir who changed her mind about the ashes had not explained this change. The facts of the case decided by the Cour de cassation are different. The deceased left her father and two children behind her. The daughter of the deceased changed her mind and opposed to the transfer of the ashes to the family vault. She has been taking care of the deceased. A claim has been brought by the father who requested this transfer. He was supported by the son. The deceased has died alone because her son has not managed to come to her prior to her operation and her daughter has not made the journey, ignoring the deceased's wish. The Cour de cassation has noted that the Court of Appeal had found that the daughter who was opposing to the transfer of the ashes was doing so mainly because of a dispute regarding the succession. The supreme court has approved the appeal judges for deciding that the person who was qualified to decide what to do with the ashes was the son in accordance with the father.

In brief, when it comes to determining who is qualified to decide what to do with the ashes, the heir who has lived with the deceased is favoured by courts but an inconsistency on his part is highly likely to disqualify him, especially if his attitude is inconsistent with the deceased's wishes.

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