Zenith CC&P Current Awareness

HABEAS CORPSE: Who Controls the Body?

14 June 2017

Nicola Phillipson TEP

An Article covering the law relating to disputes arising over how a body should be dealt with after death

By Nicola Phillipson TEP


Background

Prior to burial, a body can be moved anywhere within England or Wales without charge or permission, and without using a coffin, provided that the work of the coroner is not obstructed.  Permission of the coroner is required if you want to take the body out of England or Wales. 

Bodies are not classed as property – so cannot be subject to property offences such as being seized or stolen.

The personal representative has a duty at common law to arrange for the proper disposal of the body, and an executor appointed by will can obtain an injunction to secure delivery of the body for that purpose, as can an administrator in possession of letters of administration. 

If there is no executor, and no one entitled under intestacy, the duty falls upon the local authority, coroner, hospital or householder where the Deceased died. 


What is proper disposal of the body?

There are many – this article only covers a few.

Burial – usually in a cemetery.  However, there is no general prohibition upon burying a body on private land, provided that (i) you have the permission of the land owner, (ii) the deeds of the land do not expressly forbid this, and (iii) the burial will not contaminate water sources.  To this list I would add, that the landowner thinks carefully about the effect that the existence of a buried body will have on the price of the property when the time comes to sell.  Once a body has been buried, it must not be disturbed without permission, although such permission can be obtained by the next owner.

Cremation – usually in a crematorium.  But the cases do suggest that an open air cremation may not actually be an offence, provided that this does not cause a public nuisance. 

Embalming - in 2002 a coroner ruled that the artist Robert Lenkiewicz (and later his estate) had the right to continued possession of the embalmed body of the tramp named Diogenes – which had been found in a drawer in the artist’s studio after his death. 

Donation - either to medical science or to medical students. 

Cryogenics – this is based largely on the belief (or hope) that science in the future may be able to cure diseases and re-animate the dead to provide that cure.  This belief led to the case of JS which was widely reported in the media at the end of 2016.


Re: JS [2016] EWHC 2859 (Fam)

JS was a 14 year old girl who was terminally ill.  She had clearly articulated her wishes that she wished her body to be cryo-preserved upon her death, and that her father, from whom she was estranged, should not be allowed to view her body after her passing.  Her mother supported her wishes, her father (initially) did not.

As a minor, JS was unable to make a will and appoint her mother as executor.  As her parents, JS’ Mother and Father were equally entitled to letters of administration.  The method by which a body is cryo-preserved means that procedures have to be put in place prior to death as the body must be prepared within a very short time of death, ideally within minutes, and at most a few hours.  The family were not therefore in the situation of being able to wait for death, and then argue about who had the right to control the body, and the court was asked to determine the matter in advance of JS’ death.

Obviously this situation would be unlikely to occur in the case of an adult of sound mind, as he could just make a will, express his wishes, and appoint a like minded executor. 

Heard by Jackson J – in reaching his decision, he made it very clear not only what the case was about, but also what it was not about.  It was not endorsing or approving cryo-preservation, nor was it about ordering that JS’ body be cryo-preserved.  What the court was doing, in circumstances where JS could not act on her own behalf, and where it was not possible to wait until after her death, was providing a means by which the uncertainty about what can happen after her death could be resolved so far as possible.  It is noted that the court does not have the power to say what happens to a body.  The court cannot order anybody to carry out JS’ wishes.  But what the court can do is select the person best placed to make the necessary decisions after JS’ death, which in this case was the Mother.  The court therefore made an injunction preventing the Father from (i) applying for a grant of administration in relation to JS’ estate, (ii) making or attempting to make arrangements for the disposal of JS’ body, and (iii) interfering with the arrangements made by Mother with respect to the disposal of JS’ body.  The court also made a prospective order under s.116 of the Senior Courts Act 1981, alternatively under the inherent jurisdiction of the High Court, to take effect upon JS’ death, appointing the Mother as the sole administrator in place of the Mother and Father jointly, and specifying that the Mother shall thereby have the right to make arrangements as to the disposal of the body and to decide who should be permitted to view it.

For the purposes of this article, the case of JS can be summarised as - the role of the court is not to give directions for the disposal of the body, but to resolve disagreement about who may make the arrangements for the same.


Role of the court in disagreements over the control of the body

The order in JS was made either under s.116 of the Senior Courts Act 1981, or alternatively under the inherent jurisdiction of the high court. 

s.116 provides:

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 JS, Jackson J stated that where more than one person is entitled to a grant of administration, he interpreted this section as permitting the court to substitute one PR for both. However, he said that if he was wrong about this, he would hold that the same result could be achieved by the court's use of its inherent jurisdiction.


Anstey v Mundle [2016] EWHC 1073 (Ch)

Klein J had the same misgivings about the use of s.116 in the case of Anstey.  In this case, a dispute arose between the three daughters and a niece of the Deceased, Mr Carty.  Two daughters (Valerie and Stephanie) wanted him buried in England, the third daughter and the niece (Sonia and Cynthia) wanted the body to be buried in Jamaica where Mr Carty had been born and where he grew up.  There was a will, which appointed Valerie and Cynthia as executrices, and which said that Mr Carty wanted to be buried next to his mother in Jamaica.  Valerie disputed the validity of the will on the grounds of testamentary capacity, undue influence, and knowledge and approval, and also suggested that there may have been a later will.  As Klein J notes in his judgment, quite properly, Valerie did not ask the court to determine validity at that hearing, but it was clearly of relevance that, in the event that there was no valid will, the three daughters were the parties equally entitled to a grant on intestacy.

In those circumstances, what the court was being asked to do was to grant letters of administration under s.116, with such grant being limited to the disposal of the body of Mr Carty.

Judge Klein’s concern with s.116 was that s.116 gives power to the court to pass over the person who would otherwise be entitled to a grant in favour of somebody not so entitled.  But in this case, all four parties arguably had an entitlement to the grant.  Valerie and Cynthia had a right by virtue of being named as executors, and Valerie, Stephanie and Sonia were entitled under intestacy.  As Klein J pointed out, he wasn’t being asked to pass over an entitled person, he was being asked to select which, of those entitled, should be given the grant. 

Because Klein J had concerns about s.116, he preferred to base his decision on the inherent jurisdiction of the court, noting that, for the avoidance of doubt, he would have reached the same conclusion in any event.

But what was the decision reached? 

This is where the difficulty with these cases can be seen.  As with so many probate and inheritance claims, the law itself is relatively straightforward, and unlikely to be a source of dispute – whether pursuant to s.116 or the court’s inherent jurisdiction, the court has the power to exercise its discretion, and appoint one person as PR for the sole purpose of making the decision as to the proper disposal of the body.  The difficulty is in predicting the way that discretion will be exercised.  The reason is that, like so many probate and inheritance cases, the reported cases, and indeed, the cases met in practice, are fact specific.  And they all involve parties who have very strong feelings about what should happen to their loved one.  And in cases where there is a dispute as to dealing with the body, not only is the death usually very recent which means that you are dealing with very recently bereaved parties, time will be of the essence.  In Anstey, Klein J made specific reference to the fact that he considered the determination of the disputed to be “somewhat urgent”, as Mr Carty had died over six weeks previously.

In Anstey, Klein J followed the judgment of Sonia Proudman QC in Hartshorne v Gardner [2008] EWHC 3675, and said that the factors to be considered were

  1. the Deceased’s wishes,
  2. the reasonable requirements and wishes of the family who were left to grieve,
  3. the location with which the Deceased was most closely connected, and
  4. perhaps the most important, that the body be disposed of with all proper respect and decency, and if, possible, without further delay.

Clearly each of these factors will have to be considered in each case.  Remembering of course that all of these cases are fact specific, it is still worth looking at how this played out in practice in the case of Anstey:

  1. The Deceased’s wishes - Two parties asserted that Mr Carty wished to be buried in Jamaica, and two said that he wished to buried in Jamaica.  Klein J noted at the beginning of his judgment that he accepted that all parties adopted their particular stance because they genuinely believed that those stances reflected Mr Carty’s wishes.  There was a hearing, there was cross examination of the parties and their witnesses, and Klein J came to the conclusion that Mr Carty wished to be buried in Jamaica.  It is noted that this was based primarily upon the evidence heard in court.  For a number of reasons, Klein J said that he attached only a little weight to the expression of wishes in the will.
  2. Family requirements and wishes – the family was split, with three members calling for England, and nine apparently wishing to see Mr Carty buried in Jamaica.  But this is not simply a matter of the majority vote, it is necessary to consider who these family members are, and the nature of their relationship with the Deceased.  In this case two out of Mr Carty’s three daughters wanted him to be buried in England, and the court was urged to attach particular weight to these wishes precisely because they were Mr Carty’s children.  However, Klein J found, again on the facts of this case after hearing the evidence, that, save for his daughter Valerie whose wishes were accorded additional weight due to her close relationship with her father, Mr Carty was equally close to other members of his extended family as to his other two daughters.  Again, it can be seen how fact specific these cases are.
  3. The Deceased’s connection with the location – it was held that Mr Carty was not more closely connected with either England or Jamaica.
  4. Who is most likely to carry out the obligation to dispose of the body with respect to the Deceased and with due expedition? – the court found that all parties were equally likely to carry out the task with due respect.  But in this case it was also necessary to consider the practicalities of a burial in Jamaica as against a burial in England.  These factors include the financing of the same.

The conclusion reached in this case was that Mr Carty should be buried in Jamaica, with a particularly weighty factor being that this was held to be Mr Carty’s wish.  It was therefore proposed to give the limited grant to Cynthia (the niece), although Klein J indicated that this was only a proposal and that he would hear from Counsel on this point.  To address the court’s concerns as to the practicality of a burial in Jamaica, Klein J also ordered that a provision was to be inserted into the order which would allow the parties to return to court in the event that the burial had not occurred by a specified date.

Having reached a conclusion, the court then of course has to determine costs.  It was held in Anstey that this was “hostile litigation of the normal sort”, and as such, costs followed the event and the Defendants were awarded their costs against the Claimants which in this case were assessed at £6,000.  

Other reported cases of interest

Hartshorne v Gardner [2008] EWHC 3675

The Deceased died intestate in a road traffic accident in which his fiancée was also injured.   The Deceased’s parents had divorced around 35 years prior to the accident, and the Claimant (the Deceased’s father) and Defendant (the Deceased’s mother) were unable to agree as to the form or place of the funeral or internment.  The Claimant, although living himself in Worcester, wanted a burial in Kington (which was the Deceased’s home).  The Defendant wanted a cremation in Worcester, where she continued to live. Worcester and Kington are some forty miles apart.   In giving judgment, Proudman J referred to an Australian case (Calma v Sesar) where the judge declined to hear evidence about the Deceased’s childhood relationships with members of his family, and decided the matter according to law.  However, as Proudman J noted, in that case, the court was being asked to override the PR’s wishes.  In the case of Hartshorne, both parties had an equal right to the grant.

After hearing evidence, the Judge decided to give the grant to the Claimant father, as Kington was the Deceased’s home, where his fiancée, brother and friends lived, and where his father and brother wished him to be buried.  Although it would be difficult for the Defendant, as a non-driver, to make the journey to Kington, the Judge found that the mother’s relationship with the Deceased, and her interest in his life, had been very small in the last years of the Deceased’s wife (eg, she only had contact about twice a year, and did not know that the Deceased had divorced his third wife and become engaged), and therefore her personal difficulties did not outweigh the other factors in the case which all pointed strongly in favour of the Claimant.


Scotching v Birch [2008] EWHC 844

The Claimant was the father of the Deceased, a child named Jay.  The First Defendant was his mother.  This is a tragic case in that the parents were separated, and at the time of the hearing, the Defendant mother was on remand for the killing of Jay, her plea of guilty to manslaughter on grounds of diminished responsibility having been rejected by the CPS.  The dispute arose as to the location of the funeral and subsequent burial, the parties living in separate parts of the country.  The Claimant wanted Jay to be buried near to where he lived, the Defendant wished him to buried near where she and Jay had lived, and where her three minor children from a previous marriage still lived.

The interesting twist in this case is that the court accepted that, as she had unlawfully killed her son, the Defendant in fact no longer had any interest in his estate as a matter of public policy, and therefore she was no longer entitled to a grant under Rule 22 of the N-CPR.  It was however argued that the minor children, Jay’s half siblings, who were also named as Defendants, had Article 8 convention rights (private and family life) which had to be considered.

The Defendant children and the Claimant both put forward compelling arguments as to why Jay should be buried in their chosen location, and Patten J noted that “it is almost impossible to weigh up and decide between these various factors in purely qualitative terms”, as would have been necessary under s.116.  However, the court was not called upon to do so in this case, as the matter was determined, as a matter of practicality, by the fact that the Defendants had no locus to apply for the grant, and therefore this was issued to the Claimant.

Lewisham Hospital v Hamuth [2006] EWHC 1609

The Claimant in this case was Lewisham Hospital, which was the hospital where the Deceased had died almost three years previously.  The First Defendant was the executor appointed under a disputed will, and the Second to Thirteenth Defendants were either first or second cousins of the Deceased.  The First Defendant sought cremation, the other Defendants sought burial in the family plot.  The Claimant wanted authority to deal with the proper disposal of the body in order to free up space in the mortuary. 

The background to this case was that the First Defendant was a nurse at the care home where the Deceased had resided before being admitted to hospital, and there was a significant dispute between him and the other Defendants in relation to the validity of the will which not only appointed the First Defendant as executor, but also as the sole residuary, and primary, beneficiary.  As well as disputing the capacity of the Deceased, there were also issues raised as to the validity of the attestation of the will, and a dispute about a number of cheques for large sums of money which had been drawn in the First Defendant’s favour prior to the death of the Deceased. 

Mr Justice Hart noted that the authorities establish that an executor has, in general, the right to make arrangements for the disposal of a body, and that, at common law, it is the duty of a householder under whose roof a person has died to make arrangements for the dignified and decent burial of the Deceased, which was the basis upon which the Claimant brought their application. 

The question for the court was therefore identified as how should the Claimant’s duty be discharged in circumstances where there is a bona fide dispute over the validity of the appointment of the executor which is highly unlikely to be resolved in the period of time during which arrangements for the disposal of the body will typically have to be made.

The conclusion reached by Hart J was that as the Claimant was in lawful possession of the body, and there was no way of resolving the executor dispute within an acceptable time period, the decision as to the disposal of the body should be left to the Claimant.

It was noted that the Claimant intended to allow the family to make the arrangements for the burial in the family plot.

Laing v John Poyser Solicitors [2012] EWCA Civ 1240

The case of Hamuth was cited in Laing where the Court of Appeal declined to interfere with the first instance decision of His Honour Judge Hodge who refused the injunction sought by the Appellant to prevent the Respondent solicitors, who had been named as executor in the will, from cremating his mother.  The Appellant disputed the validity of the will.  In his judgment refusing the injunction, HHJ Hodge had said that the court was not in a position to finally adjudicate upon the validity of the will or whether the Deceased wished to be buried or cremated.  On the evidence, however, it could not be said that the challenge to the validity was certain to succeed. 

In dismissing the appeal, the Court of Appeal referred to Hamuth, and noted that in the present case, the Respondent was in lawful possession of the body and therefore on the face of it, had the right and duty to make the arrangements. 

Conclusion

It can be seen from the above that where only one party has a right to a grant, the court can, and probably often will, decide it upon this basis.  But where two parties, with differing opinions, have an equal right to a grant, it will be a matter of evidence and discretion, or perhaps even a case of possession being nine tenths of the law. 

Nicola Phillipson TEP

Zenith Chambers

June 2017

nphillipson@zenithchambers.co.uk

Current Awareness

By the CC&P team