I am sorry for your loss. These claims are typically based on a a negligence cause of action seeking damages for NIED and/or IIED depending on the specific facts of your case. My firm has handled similar cases where the funeral home substituted dirt in place of ashes after losing the remains of a loved one. These cases are oddly not too uncommon and are often unprosecuted because of the delays due to misinformation and grieving on the part of the surviving loved ones.
Hope this helps,.
Best of luck.
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IIED/NIED are very difficult to prove, and you will have a hard time getting a judgment in a case like this. That said, if you want your brother's ashes, and the funeral home has refused, have an attorney write them a letter, showing proof of payment, and demanding the ashes. At least you can get the ashes and perhaps some small compensation for the delay. Hopefully you have a paper trail or log of your demands to the funeral home for the ashes.