We are accustomed, by making a Will, to having a relatively broad ability to control the disposition of our property following a death. But what about control of what happens to ourself, to our body and genetic tissue? The law is only beginning to catch up with questions relating to the posthumous use of genetic material, to inheritance by posthumously procreated children, and whether exhumation should be allowed for the purpose of genetic testing.

Rapid advances in science have made possible scenarios that were the stuff of science fiction until only recently, bringing difficult cases to prominence in the media. Meanwhile, legislation both in the UK and elsewhere, lags behind.

A high profile case featured in the media recently was the exhumation of Salvador Dali, as colourful in death as in life. The daughter of his former cleaner claimed Dali was her father and the Spanish court gave permission for exhumation. Genetic testing failed to establish paternity, impeding the anticipated claim for an inheritance from what was rumoured to be a very large estate.

It is hard now to believe that until 1969 children born 'out of wedlock' would not inherit unless specifically named. Fast forward 50 years and the law has to try decide who is to be treated as a parent of a child born as a result of a range of fertility treatments, or of a surrogacy arrangement, or in a same sex relationship – in order to determine, among other things, who will be eligible to inherit, whether under a general gift by Will to children or in some other way. And what of inheritance by children conceived after the parent's death using their stored genetic material? As we all live increasingly global lives it may be the law of another country, not our 'home' jurisdiction, that decides some of these life and death questions.

A topic some individuals have strong views about, while others prefer not to consider it, is what should happen to their body after death. Many will no doubt be surprised to learn that directions, even by Will, as to the disposition of a body are not legally binding. The Executors appointed by a Will are, however, entitled to the body and must take responsibility for its disposal. So for those to whom this is something that matters, the key element is a good choice of Executors who can be relied upon, and who know to step in early enough before, for example, other and possibly irrevocable arrangements may have been made by family members or others who have a relationship that gives them informal status and who feel that they 'know' what was wanted.

A recent, widely-reported, court case considered this issue in the context of a teenage girl with terminal cancer, known as JS, who had expressed a firm and certain wish that her body be cryogenically preserved in the US after her death. Mr Justice Jackson ruled that, as she was a minor and therefore unable to execute a valid Will, her parents' wishes should prevail. As her parents could not agree, he ruled in favour of the mother who wanted to comply with her daughter's wishes.

This case was considered in the Law Commission consultation paper discussed by Liz and Sabrina in the previous article. The Law Commission's concern that a person under 18 in this situation cannot currently make a Will extended also to the fact that the young person might have significant assets. This might be the result of a personal injury settlement for example, or they might be a dotcom millionaire. Currently the young person cannot control who receives their assets, or who has control of their body after their death. The Law Commission provisionally recommends reducing the age for Will-making to 16, and asks for views on whether people younger even than 16 who show sufficient maturity (such as the 14 year old JS) should be able to make a Will.

There are no easy answers to any of these questions, but they all cry out for our legislators to face the hard choices and give some certainty.

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