From The Bench: The law beyond death

Just before Easter this year, the Court of Appeal was faced with the delicate question of what was to become of a person’s physical body after death. The central question was: When is there a right to be buried in a particular grave?

The judgment was delivered on the 26th March, with reference number 1117/2022/1. The names of the persons involved are being omitted for privacy purposes. The case was filed by X, the separated spouse of Y, against her relative Z.

X wanted to bury Y in a private grave which she co-owned with Z, but Z opposed due to the troubled past between her and Y.

The First Hall of the Civil Court rejected the application, stating that X had not shown the required legal interest to have her ex-husband buried in that particular grave. This was also the conclusion reached by the Court of Appeal.

The judgment is interesting because of its summary on how burial rights work.

The Court of Appeal noted that one must carefully distinguish between the ius sepulchri (the right to burial in a particular grave) and X’s right to use the grave as co-owner.

Explaining the right to burial, the court stressed that the cadaver cannot be considered like any other ‘property’. The usual rules on the enjoyment and administration of one’s property therefore, do not apply. Instead, in deciding where the burial is to take place, one must first attempt to discover the deceased’s wish. The court noted that the first place to look is the person’s last will.

If the will does nothing to help uncover the deceased’s preferences, or if there is no will, then one must consult his heirs according to the law of succession. The court was careful to point out that, in having regard to the wishes of the next of kin, it cannot compromise the deceased’s dignity.

Nevertheless, when it comes to private graves, the deceased must have had a right to be buried there. This right, the court explained, can arise either because the deceased owned the grave when he died or because he was given the right to be buried there.

This last scenario could arise because, for example, it is agreed in the deed of acquisition of the grave or because the last will of the previous owner said so.

In this case, the Court of Appeal noted that Y had not expressed any preference as to his final resting place. However, it could not rely on X’s wishes because it was not shown that she was his heir and furthermore the couple was separated. Once the grave did not belong to Y, he had no right to be buried there.

The court further highlighted that even if one is co-owner of a grave, this does not imply the right to unilaterally decide who should be buried there. Neither does co-ownership extend to dictating what should happen to the remains of others: it does not confer the right to manage corpses. Certainly, the court added, not without the consent of the other co-owners.

Naturally, the other co-owners should not object to the burial of a third-party capriciously.

In this case, the court noted that Z had good reasons to object to the burial of Y in the family grave, aside from the fact that Y had no right to be buried there. The troubled history between Y and Z was in the court’s view a sufficient reason to deny the request for burial in that particular grave.

This judgment serves as a quiet reminder that the law survives death. Law students are taught the Roman saying that the law accompanies you from the cradle to the grave. In truth, it extends even beyond death, not only in terms of wills and successions, but also in determining one’s final resting place.

David Chetcuti Dimech is an Associate at Arthur Azzopardi and Associates.