Who is the legal owner of a grave?

Who legally owns someone’s grave? Alistair Spencer and Victoria Hill of Shakespeare Martineau explains the legal position regarding grave ownership and how the law has evolved over the years.

Who legally owes a deceased’s grave?

The legal position regarding grave ownership has evolved over the years, resulting in a patchwork of legislation which applies to different burial grounds depending on who operates them.

In the nineteenth century a series of statutes were passed, including the Burial Acts (1852, 1853, 1854), to provide for cemeteries outside of churchyards that were managed by statutory bodies or private companies. The provisions of these statutes generally permitted authorities to sell burial plots to individuals and are still relevant today.

However, the rights and obligations concerning private burial plots, such as those owned by private cemeteries and local authorities, are primarily governed by contract and common law, often resulting in conflict between family members and burial ground owners, and disputes over the nature of the right acquired.

Such conflict persists today as shown recently in Mapara v Demetriou [2022] in which Lewison LJ noted that the area of law was anything but straightforward. He referred to Reed v Madon [1989] in which Morritt J said that the legal nature of a right to exclusive burial was “by no means clear” and expressly refrained from deciding whether it was an interest in land.

Local authorities

Local authorities manage cemeteries within their area by virtue of s.214 of the Local Government Act 1972. Individuals may purchase an exclusive right of burial within their local authority area, which is usually granted for a specific period, typically 50 to 75 years. A deed of grant is provided upon purchase, and the name of the registered grave owner is recorded in the statutory register as the individual owning burial rights. This is often the executor or administrator of the deceased’s estate.

The deed of grant documents this exclusive right but does not grant ownership of the land itself.

The grave plots within a local authority cemetery therefore remain owned by that local authority. A right of burial does not give the registered plot owner control over the land at the grave, but it does provide the right of the owner to:

be buried in a designated plot
authorise additional burials in that plot provided that space is available
make an application for authority to place an inscribed memorial on the grave or provide permission for a further inscription to be added

Private cemeteries

Private cemeteries are usually privately owned and controlled and therefore the cemetery owner establishes the conditions under which burial rights are granted. Like cemeteries owned by a local authority, individuals purchase the exclusive right of burial, often with a certificate or deed confirming the right. The cemetery owner is responsible for maintaining the cemetery and enforcing its regulations. Again, an exclusive right of burial does not constitute ownership of land.

Cemeteries are statutorily regulated, most also have by-laws that regulate their management. As stated in Hoskins-Abrahall v Paignton [1929]:

“it cannot be said that [the appellant] acquired any right of property in the cemetery. She had merely an exclusive right of burial, subject to the rules and regulations laid down by the respondents… I rather think the legislature has purposely left a good many matters open to the reasonable good sense of the authorities”.

Church of England

At common law, every parishioner has a right to be buried in the churchyard of his or her parish. Anyone who is on the electoral roll of the parish at their death and anyone dying in the parish also has a right to burial in that parish. The right to burial is subject to space being available and the churchyard not having been closed for burials.

In Church of England churchyards, the land (including the grave plots) is owned by the incumbent of the benefice acting in their corporate capacity, which is typically the parish priest. The Church owns the land in consecrated burial grounds, and they grant exclusive rights of burial, often for perpetual periods. The Church retains the right to regulate and manage the burial ground. Anyone not with a right to burial would require the consent of the parish priest to be buried in the churchyard.

As stated in Re St Andrew’s Churchyard, Witchford; Practice Note [2017]; “There is a common misconception that ownership of the grave vests with the deceased or the family of the deceased. Whilst property in the headstone lies with the person who paid for it, the freehold of the land making up the churchyard and, therefore, a grave within it is vested in the incumbent”.

Who can permit another burial to be made in the same plot?

Cemetery

A grave plot that has been purchased can only be opened for the burial of the individual who holds the deed or another person with the written consent of the individual who holds the deed. If another individual wishes to arrange a burial in the grave plot, it is necessary to legally transfer the deed. This can lead to disagreements among family members in relation to who should take ownership, particularly if the original owner died without making a will.

In a cemetery, the registered owner of a grave plot has the authority to permit another burial to be made within that plot. The cemetery owner cannot re-open an existing grave without the permission of the registered grave owner. In the event that there is no living owner, the cemetery will need to establish who is legally entitled to the plot and a ‘transfer of ownership’ must be completed before they can proceed with the burial.

In Reed and Others v Madon and Others [1985 R. No. 3016] [1989] the plaintiffs sought injunctions against the first defendant to prevent him from placing any structure on or trespassing on their reserved plots and prohibiting the defendant cemetery company from permitting a burial in the reserved plots in the absence of the first plaintiff's consent. It was held that the defendants were liable to the plaintiffs regarding the breach of statutory duty constituted by the burial of another individual in the plot reserved exclusively to the plaintiffs. It was stated that “since section 40 of the Cemeteries Clauses Act 1847 authorised the cemetery company to sell the right of placing a monument or gravestone in a cemetery, the grant of exclusive burial rights to the plaintiffs had included the right to prevent anyone else's memorial being placed over the site they had been granted exclusive burial rights [for]”.

Churchyard

If the existing grave is sufficiently deep the parish priest may give permission for another deceased member of the same family to be buried in that grave even if that individual was not resident in the parish, not on the electoral roll of the parish and died outside the parish. The parish priest will need to be satisfied that such a proposal is acceptable to the close relatives of the family concerned and should ask for written assurance from all relevant family members that they agree to the new burial in the existing grave.

Whose permission is required to have an inscription added to a headstone?

Permission to bury a body in a churchyard or cemetery does not include the right to install a headstone or other memorial. Any such permission must be obtained from the parish priest (in the case of land owned by the church) or from the local authority (in the case of a cemetery), and if granted, conditions will tend to be imposed including in relation to the words and font of the inscription and the shape and material of the headstone.

To add an inscription to a headstone, permission is usually required from the registered owner of the burial plot and the cemetery or churchyard authority. Cemeteries generally require a signed application from the registered owner, which may be the individual who purchased the burial plot or an authorised successor, detailing the proposed inscription.

Most cemeteries and churchyards have specific regulations and requirements regarding headstone inscriptions, and they will need to give prior approval to the proposed inscription. Some only allow specific shapes, sizes, wording, lettering styles or memorial materials.

It was stated in re St Andrew’s Churchyard, Witchford; Practice Note [2017] that “whilst property in the headstone lies with the person who paid for it […] there is no right to erect a monument in a churchyard except by permission granted by a faculty”.
In his judgment in re Christ Church, Harwood [2002], Holden Ch stated: “The rights and interests of private individuals, of the worshipping congregation, of all parishioners, of the local community, and of the Church and society at large all have to be considered in permitting a memorial, to be placed in a churchyard. There cannot be a carte blanche situation where a family of the deceased has sole right to decide what is, and what is not, appropriate by way of memorial, not least because … that family do not own the land in which the remains are placed, or on which the memorial is meant to be placed”.
An example of such permission being denied is shown in Re Holy Trinity Churchyard, Freckleton [1994] 1 WLR 1588, which concerned a memorial inscription with wording contrary to parish priest’s policy and the chancellor's regulations. Permission was sought to install a headstone bearing an inscription which included the words “a devoted and much loved husband, dad and grandad”. It was refused and held that a right of burial in a consecrated churchyard did not include a right to install a memorial for the deceased; and that the chancellor had authority to implement regulations concerning memorials, which were intended to encourage ‘good policy and practice’ within the diocese and define what memorials the parish priest might himself permit. Accordingly, the parish priest had no power to authorise a memorial not complying with the regulations.
However, it has been possible to petition the Church of England ecclesiastical court to grant what is known as a ‘faculty’ to permit a departure from churchyard rules. In Re St Mary’s Churchyard, Offton [2018] a mother of a deceased young child petitioned to have inscriptions on both sides of the headstone, which the churchyard regulations forbid. On considering the significance of the proposed verse and the personal factors which motivated the proposal, permission was given. It was noted that the decision was not a relaxation of the general rule and demonstrated the sort of exceptionality required to depart from it.

Law Commission consultation

The Law Commission is currently seeking to reform the law of burial in England and Wales which is piecemeal, complicated and, in some cases, dates back 170 years. The consultation aims to create an updated and coherent legal framework for funerary practices.

The consultation paper, published in October 2024, explores various aspects, including the regulation of burial grounds, grave reuse and reclamation. The consultation period for this project ended on 9 January 2025 and the Law Commission is now in the process of analysing responses before making final recommendations to the government.

About the author

Alistair Spencer is a Legal Director in the Inheritance Disputes team at Shakespeare Martineau. He specialises in contentious trusts and probate. He represents private individuals, charities, trustees and executors in a wide range of matters.

Victoria Hill is a Trainee Solicitor in the Inheritance Disputes team at Shakespeare Martineau.