- Factors court considers when dealing with burial disputes
- There is no right of property in a dead body
- Upon death of a married person, the surviving spouse has the paramount right as to the custody of the remains of the deceased and its burial
When dealing with burial disputes, the court will consider the following factors;
- The deceased’s wishes;
- The reasonable requirements and wishes of the family and friends who are left to grieve;
- The place the deceased was most closely connected with; and
- Ensuring that the body is disposed of with respect and without delay.
Of these factors, the fourth is generally considered to be the most important consideration for the court, also referred to as the “overriding factor”. The property (land) in Luweero is undisputed; I accordingly find that the deceased should be buried in Luweero following the wishes of the mother Mrs. Janet Omaset and in consideration of all other factors.
There is no right of property in a dead body in the ordinary sense, but it is regarded as property so far as necessary to entitle the surviving spouse or next of kin to a legal protection of their rights in respect to the body. While the primary and paramount right to possession of the body and control of the burial is vested in the surviving spouse, the right of a surviving spouse, to control the burial is dependent on the peculiar circumstances of each case, and may be waived by consent or otherwise. This means that the right of a surviving spouse to the custody of the body for purpose of burial is not an absolute one. Additionally, if the deceased had expressed any particular place for his or her burial, then consideration must be given to that place.
Upon the death of a married person, the surviving spouse has the paramount right to custody of the remains of the deceased and it’s burial. As would be the case in intestacy, the right only accrues to a legally married wife, blood relatives of the deceased or a lawful attorney authorised in writing. This is because the wife and blood relatives by reason of proximity are presumed to know and represent the wishes of the deceased in his death. In the case of Kyobe Julius & Ors vs Aidah Namwala Misc. Application No. 167 of 2021, it was stated that there is a requirement of actual closeness or proximity to the deceased in enforcing the deceased’s rights and this must not be ignored…”
Namusoke Annet Kiwanuka vs Eva Amuge & 2 Ors. Miscellaneous Cause No. 004 of 2023
Judgment delivered by [Celia Nagawa, J] on March 20, 2023