Recently, I successfully acted for a client in an emotionally charged probate matter concerning the imminent cremation and funeral of the client’s deceased brother. The funeral and burial were against the deceased’s express wishes. Below is a sombre but important summary of the law concerning ‘body disputes’.
I am very grateful to Forbes Solicitors (Tom Howcroft & Lucy Scurfield) for their clear instructions and kind assistance throughout these proceedings.
The case
The deceased died intestate, therefore no funeral wishes had been expressed in a will. Shortly before his passing, the deceased expressed his wish for a Muslim funeral and burial. The client was the deceased’s sister who wished to implement her brother’s final wishes. The deceased’s wife thought otherwise, instead opting for a cremation and different ceremony. Of particular concern in this case was the fact that cremation is forbidden in Islam. Such an irreversible act would have caused great distress to the deceased’s mother, close family and wider community.
The client was first successful in obtaining an urgent without notice interim injunction (with penal notice) to prohibit the imminent cremation of the deceased and mandated the withdrawal of instructions for the same. The case was expediated given the reality of a body not being able to keep indefinitely. Only two weeks later, the matter came before the High Court in Manchester for trial. The trial encompassed the final injunction and a further claim pursuant to s.116 Senior Courts Act 1981 (“s.116 SCA”) for a grant of letters of administration to the deceased’s sister, limited to dealing with the body and funeral.
The hurdle to overcome was the fact that the deceased’s wife, even though estranged from the deceased, had priority in law to a grant of letters of administration (r.22 Non-Contentious Probate Rules 1987, “NCP Rules”). The claim sought to ‘pass over’ the deceased’s wife and appoint the client as administrator of her brother’s estate, limited to dealing with all aspects of custody and disposal of the body. At trial, an agreement was reached in the client’s favour. The court made an order pursuant to s.116 SCA which permitted the client to be limited administrator to allow her to carry out the deceased brother’s final wishes.
The law
The starting position in English law is that there can be no property in the dead body of a human being (Williams v Williams (1882) 20 Ch D 659). The court is therefore concerned with ‘disposal rights’ as opposed to ‘proprietary rights’. In the first instance, the common law principle is that the duty is of ‘the householder under whose roof a person has died to make arrangements for the dignified and decent burial of the deceased’ (University Hospital Lewisham NHS Trust v Hamuth [2006] EWHC 1609 (Ch)). This principle usually applies where there is an ongoing dispute as to the identity of the correct personal representative(s) (“PR”) or the validity of a will.
The PR of the deceased has the better right. If there is no dispute as to the identity of the PR or once a grant of probate or letters of administration have been obtained, the PR will have both the right and duty to make arrangements for the disposal of the body if that has not already been done. In this case, there was no PR as there was no will and no letters of administration had been obtained. The hurdle to overcome was the fact that the deceased's wife plainly had priority to such a grant under the NCP Rules. She was the ‘presumed administrator’. Unlike executors, administrators do not take title from the date of death. However, for the purposes of the right to a deceased’s remains, the person ordinarily due to be granted letters of administration has the right to possession (Holtham v Arnold [1986] 2 BMLR 123). In short, the PR usually has the final say. As in the client’s case, there is obvious scope for disagreement where an actual or presumed PR decides to dispose of a body in a way which others consider to be contrary to a deceased’s wishes (or even their own/deceased’s family’s views). This is where an application pursuant to s.116 can assist.
s.116 SCA and authorities
s.116 SCA: Power of court to pass over prior claims to grant
(1) If by reason of any special circumstances it appears to the High Court to be necessary or expedient to appoint as administrator some person other than the person who, but for this section, would in accordance with probate rules have been entitled to the grant, the court may in its discretion appoint as administrator such person as it thinks expedient.
(2) Any grant of administration under this section may be limited in any way the court thinks fit. In Hartshorne v Gardner [2008] EWHC 3675, the court exercised its inherent jurisdiction in deciding between burial in one place and cremation in another. The following factors were identified:
- the deceased’s wishes;
- the reasonable requirements and wishes of the family who are left to grieve; and
- that the body be disposed of with proper respect and decency and if possible without further delay (this factor being the most important).
Recent High Court authority demonstrates that even where the identity of the person with priority for a grant is known (as in this instant case, being the deceased’s wife), a limited grant can still be made to another to properly reflect the deceased’s burial wishes. In Pangou v Nzoulou [2022] EWHC 147, a limited granted was made to the deceased’s unmarried partner, as opposed to his only adult child who would have had priority for a grant of probate had a s.116 SCA application not been made. The court made a limited grant to the deceased’s partner.
The fact that the deceased’s wishes were recorded in a journal (found to reflect his actual wishes despite its authenticity having been challenged) was a factor given significant weight. Ibuna v Arroyo [2012] EWHC 428 is further authority for the principle that the deceased’s express wishes should be given consideration. In Ibuna, an order was made appointing a joint administrator pursuant to s.116 SCA, alongside the person who nevertheless had priority. Notably, the special circumstance found was that the person with priority was willing to allow the applicant to make the proper disposal arrangements in accordance with the deceased’s wishes.
In Anstey v Mundle [2016] EWHC 1073, the court utilised its inherent jurisdiction and concluded that the deceased’s wish was to be buried next to his mother and son in Jamaica. In the court’s mind, the deceased’s wish was a particularly weighty factor. An important element of this case was that the court could not determine or direct where or how the deceased would be buried, but would direct who had the power and duty to bury the deceased.
Points to note
For those who die leaving a will, there is ordinarily a clause expressing funeral wishes which can assist in resolving disputes. Nevertheless, such an expression is not legally binding upon a PR of the estate, highlighting the importance of selecting your executor(s) wisely. In the absence of an expression of wishes in a will, clear documented evidence of the deceased expressing their wishes, may assist in persuading a court to pass over a person who has priority for a grant of letters of administration, in favour of somebody who will properly carry out those wishes.
In these sensitive disputes, the court is faced with adjudicating upon legal principles whilst trying to navigate the unavoidable practical, moral and social issues which arise. Within the remit of established principles, the courts arguably tend to look for a way to uphold the deceased’s wishes. Most people may think that their funeral will be arranged in a cordial and respectful manner, but harmony is not always possible. An application pursuant to s.116 SCA may be the recourse needed for family members if such an unfortunate situation arises.
Norman Lamb
9 St John Street Chambers