Grave Ownership and Transferring Deeds, Including Statutory Declarations
- Burial law states that only the grave owner can give permission for another person to be buried in their grave. For the Council to recognise and register the details of the current owner any transfer of ownership must be notified and evidenced to the Council Possession of the grave deeds does not necessarily infer that the holder is entitled to the deeds and does not guarantee that the Council will permit any further burials or the erection of any memorial on a grave.
- Ownership of the grave only entitles the owner to determine who may be buried in the grave; it does not give any form of ownership over the land nor entitle the person to any automatic rights to erect any form of memorial or plant the plot out with flowers or shrubs. For any memorial, a grant for the erection of a memorial must be sought from the Council. However, where permission for the erection of a memorial has been granted and there is a memorial, the registered owner is fully responsible for its maintenance, upkeep and safety.
- Often grave owners will pass away without making arrangements for the transfer of deeds and this can give rise to problems when descendants wish to use the grave at a later date. The Council is unable to simply grant further burial consents upon request and must be satisfied that any person claiming ownership of the grave is legally entitled to it. It is therefore recommended that any transfer of ownership is notified and evidenced to the Council at the earliest opportunity.
- The owner’s Will may often be the best place to look for the identity of any person who might be entitled to receive the grave deeds; alternatively, there may be Letters of Administration, or Probate. Where there is no Will, Letters of Administration or Probate, a Statutory Declaration is usually required by the Council to evidence who is entitled to be registered as the grave owner.
- Where there is uncertainty about the grave ownership, the Council recommends that you resolve the uncertainties sooner, and with the comfort of time, rather than later, to avoid the distress of trying to sort out any problems at short notice and prior to the looming deadline of a funeral.
The Statutory Declaration should clearly set out the facts regarding the original purchase of the exclusive right of burial, the death of the registered owner, intestate or otherwise, and the relationship of the applicant to the registered owner. The original Deed or Grant should accompany the Declaration, if available. Where the Deed has been lost, suitable wording should be incorporated within the declaration to that effect. It is essential that the written agreement of all the next of kin of the deceased owner, to the transfer of ownership, should also be obtained and attached to the Declaration. The Council may ask for a certified copy of the owner’s death certificate in certain situations.
The information below is not exhaustive, but is intended to help those persons wishing to draw up their own Statutory Declaration. Each Declaration is likely to have circumstances that are unique to that case, but this guidance document sets out the usual information required. Two examples are also provided and may be used as a template, but as stated above and on the template each case will be different and therefore the example template is a guide only. The Council suggests that any Declarations be approved in draft form by the Council before they are finally sworn to ensure that they are acceptable to the Council. The Declaration may be drafted by anyone but must be finally ‘sworn’ in front of an appropriate person, usually a recognised Solicitor and the Council would advise you to take independent legal advice in relation to the Declarations. There is usually a charge by Solicitors for this work.
It can be helpful to sketch out a family tree going back to the original grave owners and including all descendants, as this can help inform the process of setting out who may be involved.
- Name(s) and address(es) of person(s) making the Declaration. This is usually one person who is entitled to ownership, or a number of family members.
- The section and plot number with names of persons interred.
- Relationship between person(s) making the Declaration and the deceased. Where there is more than 1 surviving relative, details of the ‘family tree’ should be described and if there are others who may have an interest in the Estate, then all should sign the Declaration, or if that is not possible at the time of making the Declaration, a signed letter from those persons not signing could accompany the Statutory Declaration and be referred to in the body of the Declaration. This section may be quite complicated especially if there is an extended family.
- Where any deceased grave owners are being referred to in the Declaration, the date of their death must be stated along with details of whether they died intestate and if Probate or Letters of Administration were granted. Certified copies of any Will, Grant of Probate or Letters of Administration must be exhibited in the Declaration in order to evidence who the ownership of the grave was passed on to.
- An explanation as to why a grave deed is not produced or why the deed owner cannot give assent or permission. Where deeds cannot be located, it would be helpful if any documentation (such as a receipt for payment or perhaps the original invoice or account from the funeral director which mentions purchase) are referred to and copies provided.
- Confirmation that no one else has an entitlement to be interred in the grave space.
Form of Renunciation
May be used (together with a Statutory Declaration if required) when the grave is being claimed by more than one person ie the deceased may have three children and next of kin, and one or more of those children wishes to give up their rights to the ownership.
Form of Assignment
Used by a living owner to transfer or change the ownership of the exclusive right of burial ie to transfer to a new owner or add an additional owner.
Grant of Probate
Granted to the Executor(s) of a Last Will and Testament.
Letters of Administration
When a deceased person dies intestate then the next of kin can apply to the Courts to be made Administrator of the estate.
Unfortunately the Council cannot become involved where there is a family dispute over any ownership or where there is a stalemate and relevant consents are withheld. The various next of kin should endeavour to reach some form of agreement between them or, if that fails, seek the advice of a Solicitor. Until such problems are resolved, the Council may not register any transfer of ownership of the Grave Deed.