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16: A final resting place

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16: A final resting place
Leave your thoughts John Darnton

By John Darnton

The disputes that arise following a person’s death can take multitude of different forms. Sometimes, especially where there is no Will, a person’s nearest and dearest may argue over chattels, often on the basis that they were promised a particular item. On other occasions there may be a disagreement over the wording of the death notice or the epitaph on the gravestone.

It is also not unheard of for a dispute to occur over where the deceased should be buried. Jonathan Klein (sitting as a Deputy Judge of the Chancery Division) has recently had to deal with such a situation.

As the judge said in his short judgment:

‘At its heart, the dispute concerns where Mr Carty’s body should be buried.  Two daughters, Valerie, the claimant and Stephanie, contend that Mr Carty’s body should be buried in England.  Sonia, Mr Carty’s third daughter, and Cynthia, Mr Cary’s neice, contend that his body should be buried in Jamaica’.

The basic facts are that Mr Carty was born in Jamaica in 1935 but came to the United Kingdom in the 1960s where he worked as a transport engineer. Although he had a property in Jamaica, his last visit there had been as long ago as 1998. He died in 2016.

It seems that Mr Carty had a Will, or at least a purported Will, dated 2014 which contained the following words:

‘I wish to be buried in Jamaica beside my mother’.

Notwithstanding these words the family members were unable to agree where the body should be buried. Over six weeks after the death the matter came before the judge to decide.

In legal terms, the issue was not actually where Mr Carty should be buried but who ought to be given the power and the duty to arrange for the disposal of the body. In particular, to whom, if anyone, ought a grant of letters of administration be issued.

The judge reminded himself that the personal representatives of a deceased person have a duty to arrange the proper disposal of a dead body. He also concluded that in dealing with the issue before him there were various factors to be taken into account namely, (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) the consideration that the body be disposed of with all due respect and decency and if possible without further delay. This was not however a wholly exhaustive list.

The judge found that in regard to Mr Carty’s wishes, on the evidence, he had wished to be buried next to his mother in Jamaica. This was a particularly weighty factor. In regard to the wishes of his family, although it might have been, in many families, that a person was closest to his children, that was not always the case. Accordingly, on the facts, although Mr Carty had been close to at least Valerie and Stephanie he had been equally close to other members of his extended family and, for that reason, no significantly greater weight ought to be accorded to the views of the children than to those of the extended family. Valerie had played a more significant role than other family members in her father’s care in his later years and because she had shouldered that burden in difficult circumstances her wishes as to the location of her father’s burial would be accorded somewhat more weight than the views individually of the other family members. However, although weight was given to Valerie’s view to bury her father in England, in the circumstances, Mr Carty’s own wishes to be buried next to his mother in Jamaica, together with the more generally held view of the family, outweighed that preference. Further, although Mr Carty had lived for many years in England, on the evidence, it could not be said that he was significantly more closely connected with England than with Jamaica.

Accordingly, the judge felt it would be most appropriate for Mr Carty to be buried in Jamaica but because the court could not determine or direct where or how the deceased would be buried the judge could simply order that the duty would be imposed on Cynthia, Mr Carty’s niece, who was able to give effect to a Jamaican burial.

The judge was therefore able to make an order which had the effect of resolving the dispute. He did, nonetheless, make two comments presumably designed to encourage people in future to try and resolve disputes of this nature outside of the court.

Firstly, Mr Klein referred to a comment of Hale J in an earlier case in which she said:

‘I accept entirely that the court should be slow to entertain proceedings such as these. Modern methods of refrigeration may make them possible but they are certainly unseemly. They delay the proper disposal of the body and the normal processes of grieving, while bringing further grief in themselves.’

Secondly, the judge stressed that: “a lot of things have been said during the course of this litigation which cannot be unsaid. If the probate action is like these proceedings, there will similarly be accusations made which may or may not be true but which are personal. I make a plea to each and every member of Mr Carty’s family to come together, even if only temporarily, to give Mr Carty a dignified funeral and burial.’

10 June 2016

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