A Grave Dispute: Intestacy and Interment

Few disputes are as emotionally charged as those concerning the burial of a loved one. In a recent High Court action, the Claimants, two sisters, sought to give effect to their mother’s last wishes, that she be buried alongside their father. The Defendants, their two brothers by a different father, denied any such wishes. The Defendants had already organised a funeral and burial elsewhere without the Claimants’ consent.

An urgent application and claim were brought before the High Court. Mark Diggle secured a successful result for the Claimants, ensuring that their mother’s final resting place was in accordance with her wishes. Rebecca Brookes successfully defended a related claim advanced against the Claimants before appearing in the High Court to secure costs and settle the terms of an injunction preventing interference or disruption of the funeral arrangements. The interim hearing to prevent a burial before trial was dealt with by Tom Carter.

The Facts

Some 30+ years prior to her death, the Deceased had been granted exclusive rights to a burial plot with the Claimants’ father. A few months before her death, whilst terminally ill, she had made an application to erect a memorial on that plot in her name. It was the Claimants’ position that she had expressed an intention to be buried there after her death, the Defendants disagreed.

The Deceased died intestate and Letters of Administration had not been granted at the time of the hearing. Following the order of priority provided for by Rule 22 of the Non-Contentious Probate Rules 1987, the parties had equal priority to the grant. The question for the court was whether it could and should order a limited grant for the purpose of the funeral and interment.

The Law

Section 116 of the Senior Courts Act 1981

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.

No proprietary interest in a dead body

It is established law that there is no property in a dead body. The starting point, then, is who has the right to decide the manner in which to dispose of a deceased person’s body. The law is helpfully summarised by Hale J as she then was in Buchanan v Milton [1999] 2 FLR 844:

“There is no right of ownership in a dead body. However, there is a duty at common law to arrange for its proper disposal. This duty falls primarily upon the personal representatives of the deceased (see Williams v Williams (1881) 20 Ch 659; Rees v Hughes [1946] KB 517). An executor appointed by will is entitled to obtain possession of the body for that purpose (see Sharp v Lush (1879) 10 Ch 468 at 472; Dobson v North Tyneside Health Authority [1997] 1 WLR 596 at 600 obiter), even before there has been a grant of probate. Where there is no executor that same duty falls upon the administrators of the estate, but they may not be able to obtain an injunction for delivery of the body before the grant of letters of administration (see Dobson)”

Special circumstances

Buchanan concerned the burial place of a man of Australian Aborigine decent by birth but who had been adopted, grown up and lived in the UK. An application was brought by his birth mother to displace the executor for the purpose of arranging a burial in Australia. The special circumstances referred to in S116 included a questionable adoption process, the family’s wishes and the deceased’s wishes; although these did not make it necessary or expedient to displace the person with the grant; and the application was refused in this case.

What amounts to special circumstancesis left open by the Act and is a question of fact in each case. For example, Hale J in Buchanan did not consider the adoption per se to be a special circumstance but that the ‘very unusual set of circumstances’ around that were. The question, then, is one that will be largely context dependant.

The Deceased’s wishes

The long-held position at common law is that there is no right for a person to determine the manner of disposal of his or her body after death. This can be traced back to Williams v Williams (1882) LR 20 ChD 659, which reasoned that if there is no property in a dead body, it is not possible for any will or direction of the deceased to direct its disposal.

A different approach was taken in Burrows v HM Coroner for Preston [2008] EWHC 1387 (QB) when considering the use of the discretion under Section 116. Cranston J formed the view that the Deceased’s wishes about the mode and location of his interment were special circumstances but framed that as being part of the Deceased’s Article 8 rights. That view has not been supported by subsequent judgments (see Ibuna v Arroyo [2012] EWHC 428 (Ch)).

However, the deceased’s wishes have been endorsed as relevant, or “highly so” as described by Peter Jackson J in re JS (A Child) (Disposal of Body: Prospective Orders) [2016] EWHC 2859 (Fam) at [48]. Re JS is a particularly sad and extremely unusual case of an application by a terminally ill child who wished for her body to be cryogenically preserved after her death. Her mother would adhere to those wishes, her father would not. The court held that the child’s wishes amounted to special circumstances within the meaning of Section 116, and to appoint her mother as administratrix would likely allow those wishes to be carried out. Notwithstanding, the court emphasised in its judgement that wishes of the Deceased were not binding on a court. Nor was it the role of the court to direct the manner of disposal of the body but rather to decide who be appointed to make those arrangements.

What can be derived from the case law is that the Deceased’s wishes can and will be considered in the matrix of special circumstances, but it is not necessarily the case that they will be determinative of the outcome. 

Jurisdiction where two persons are entitled to a grant of Letters of Administration

… 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…

Section 116 may appear, at first sight, to be reserved only for situations where the person entitled to a grant is to be displaced. Mr Jonathan Klein, as he then was, in Anstey v Mundle [2016] EWHC 1073 (Ch) considered that Section 116 did not apply where the dispute was between two persons who were each entitled to a grant. However, he decided that the Court could make the relevant Order under its inherent jurisdiction and held that if Section 116 had applied in that case, then the same result would have been achieved.In Re JS, Peter Jackson J interpreted Section 116 in a different way, holding that the Section would apply where the Court was being asked to prefer one of a number of persons equally entitled to a grant (see para 53 of the judgment).

Conclusion

There is no proprietary interest in a dead body.

The right to determine the method and location of disposal of a body rests with the personal representatives of the deceased.

Where there is no personal representative appointed, the person with the highest priority under Rule 22 takes precedence.

Where there is a dispute as to who ought to dispose of the body, which would either displace the order of priority or where more than one persons have equal priority, the court has the discretion to appoint a representative for the purpose of the funeral and disposal (a limited grant) either under its inherent jurisdiction or pursuant to Section 116 special circumstances.

Section 116 special circumstances are context dependant, but the wishes of the Deceased are highly relevant.