University Hospital Lewisham NHS Trust v Hamuth & Ors

An executor generally has the right to arrange the disposal of a deceased person’s body, but funeral directions expressed by the deceased are not legally enforceable. Where the validity of the will appointing the executor is genuinely disputed and cannot be resolved within the time normally required for disposal, the person lawfully in possession of the body may decide the appropriate arrangements. The court may give directions enabling that person to act. The arrangements should provide a dignified and appropriate resting place for the deceased.

The claimant NHS trust lawfully held the body of a deceased patient in its mortuary. The first defendant claimed to be executor under a will which directed cremation, but the deceased’s family challenged the will on grounds including want of due execution, lack of knowledge and approval, lack of testamentary capacity, and suspicious financial transactions. The family sought burial in a family plot. The post-mortem examination had taken place, and the court was asked to determine who should control disposal of the body while the probate dispute remained unresolved.

1. General principles. An executor ordinarily has the right to arrange the disposal of a dead body. However, directions given by the deceased concerning disposal are not enforceable as a matter of law. These propositions were established by Williams v Williams 20 ChD 659.
2. At common law, a householder under whose roof a person dies has a duty to arrange a dignified and decent burial where the deceased is poor and no other arrangements can be made: R v Stewart 12 Ad & E 773 at 778.
3. Unresolved dispute as to executorship. If the alleged executor’s entitlement is genuinely disputed, and the dispute cannot realistically be resolved before disposal arrangements must be made, the court need not defer action until the probate issue is determined. The claimant, being lawfully in possession of the body, was entitled to make the necessary arrangements.
4. Prior authority. Re Grandison, reported in The Times on 10 July 1989, appeared to proceed on the basis that an undisputed executor would have priority. It left open whether the court could override or supplant the executor in an appropriate case. That question did not prevent the court from deciding the present case on the basis of lawful possession and the practical impossibility of timely resolution.
5. The court declared that the claimant could arrange disposal notwithstanding the first defendant’s objection and claim to act as executor. The claimant’s proposed arrangement, allowing the family to bury the deceased in the family plot, was considered appropriate.

First-instance decision. No appellate history was stated in the judgment.