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Ashes Destination: Legal Issues in The Netherlands
It regularly happens that surviving relatives get into disagreement about the ash destination. After a loved one has been cremated, relatives can have different ideas about what should happen to the ashes of the deceased.
One person wants to keep the ashes in an urn at home, while the other would rather have the urn buried in a place that everyone can visit. Others wish to carry the ashes of their deceased loved ones with them in a piece of jewelry or incorporate the ash into a tattoo. So many people, so many wishes. However, the law in the Netherlands does not provide for a legal arrangement in the event of disagreement between the surviving relatives about the destination of the ashes.
1. Who can arrange the cremation?
The deceased may have determined by testament who may arrange the cremation. If an executor is appointed in the will, he is supposed to arrange the cremation. However, if the deceased did not appoint an executor, the cremation may be arranged by the person who gets permission from the officer of the Civil Registry in the Netherlands. Anyone can request the permission to arrange the cremation. The permission is granted to the person who hands over the death certificate. When granting the permission, the officer of the Civil Registry does not concern himself with the question of who is most suitable to arrange the cremation or who would be most entitled to it. The Dutch legislator did not want to interfere in the mutual relationships and rights of the surviving relatives.
2. Who determines what the destination of the ashes should be?
The person to whom the permission to arrange the cremation has been granted must also take care of the ash destination. The (probable) wish of the deceased must be followed. The deceased may again have determined by testament which destination should be given to his ashes. In this way he can determine that his ashes must be scattered (in part) at a specific place that was very meaningful to him. For example, part of the ashes of the Netherlands' best-known folk singer, André Hazes, have been fired into the air in accordance with his last wish.
The person who takes care of the ash destination may therefore not determine what happens to the ash at his own discretion. The last wish of the deceased must be respected by the surviving relatives, even if they agree among themselves on the destination to be given to the ashes. The Zeeland-West-Brabant District Court considered this:
“The law, however, takes the (presumed) wish of the deceased about the ash destination as a starting point. That means that [the claimant's] claim must be rejected if the distribution of the ashes he requested is not in accordance with the wishes of [testator], even if (...) [defendant] initially agreed to that distribution. "
3. What if the (probable) wish of the deceased is unknown?
The wish of the deceased with regard to the destination of his ashes may be unknown. For example, if he has not prepared a testament and he has never made anything known to his family or friends about this. In that case, when giving a destination to the ashes, the presumed wish of the deceased must be followed. This is the point at which disagreements between surviving relatives usually arise. One relative claims that the deceased wanted to be scattered and the other relative knows for sure that the deceased had wanted each of his children to get a share of the ashes. The Dutch law does not provide a solution in the event that the surviving relatives cannot agree on the destination of the ashes.
4. What to do if the surviving relatives cannot reach an agreement?
Despite the disagreement between the relatives, a destination will have to be given to the ashes. If not only the wish of the deceased but also his probable wish cannot be traced, then a destination must be given to the ashes in reasonableness and with consideration of the feelings and interests of the surviving relatives. For example, the Utrecht Court considered:
“Now that [S.] has not been able to express herself in this regard, nor has she made a testament with regard to the destination of her ashes, nor can it be determined with sufficient certainty what she would have wanted, a destination must be given tot he ashes with balancing the feelings and interests of the surviving relatives, in this case [the mother] and [the father]."
Now that giving a destination to the ashes can be irreversible, surviving relatives are advised not to wait too long before taking legal action when they cannot reach an agreement about the ashes destination. A lawyer can play a mediating role in this. A settlement made between the surviving relatives can then be put in writing quickly.
In addition, a lawyer can start summary proceedings on behalf of the surviving relatives. In this summary proceedings, for example, delivery of (a part of) the ashes can be demanded, as well as that the other surviving relatives are temporarily prohibited from giving the ashes an irreversible destination. The court can impose a penalty. After that, a lawyer can start court proceedings on the merits. Whether the claim will ultimately be granted by the court depends on the specific circumstances of the case. The outcome of such a procedure is difficult to predict, because the judge will weigh all the interests of the surviving relatives when making his decision.
The person who gives a destination to the ashes must – if possible - adhere to the (probable) wish of the deceased. If it is unclear what the (presumed) wish of the deceased was, the feelings and interests of the surviving relatives will have to be taken into account when giving a destination to the ashes. If the surviving relatives cannot agree on the ash destination, they can consider starting a court proceeding. The outcome of such a procedure is difficult to predict and depends on the specific circumstances of the case.