No Property in a Body

After the passing of a family member, those who survived would inevitably be faced with two issues. First would be the funeral. Second would be about the estate of the deceased.

While both issues revolved around fulfilling the last will of those who had left us, more often disputes arose over the distribution of the estate. However, there are occasions when disputes arise over funeral arrangements, such as who should be responsible for the funeral, which religion’s ceremony should be used, burial or cremation options, or who should “own” the ashes.

The position under the common law is clear: Nobody can own a dead body or body parts, even their own, as those are Res Nullius – Nobody’s Thing. In the recent case of Leung Kar Hin Ross (梁伽顯) v Ma Lai Fong (馬麗芳) [2026] HKCFI 383, Au-Yeung J reiterated the legal principles:

1. There is no property in a corpse.
2. A man cannot, by will, dispose of his dead body.
3. As a starting point, the executor or administrator has the right to possess the body and be responsible for its burial. The surviving spouse is generally preferred over the children.
4. However, the court may depart from the starting point if justified. E.g., if that person is not ready, willing, and able to arrange the burial, or in cases of intestacy, there is no surviving spouse or anyone applying to be the administrator.
5. The person responsible for the burial is expected but not legally bound to consult with other stakeholders. But he cannot exclude the deceased’s friends and relatives from reasonably and appropriately expressing their affection.

The court also stressed that the body should be disposed of with all proper respect and decency and, if possible, without unreasonable delay.

In light of the above, while the person’s wish itself is not binding, it is always wise to make it known to friends and family in advance to prevent disputes caused by misunderstandings.