Ibuna & Anor v Arroyo & Anor

There is no property in a dead body, but the personal representatives have the primary duty to arrange its proper disposal. An executor may obtain possession before probate and may consider the deceased’s wishes, although those wishes are not binding. Human-rights concepts do not give the body an independent post-mortem right requiring protection. Where special circumstances make it necessary or expedient, Section 116 of the Senior Courts Act 1981 permits the court to pass over ordinary priorities and appoint an appropriate administrator. Clear evidence of the deceased’s wishes may constitute such a special circumstance, but the wishes are a factor rather than paramount.

The claim concerned competing applications for possession of the body of Ignacio Arroyo, who had died in England while domiciled in the Philippines. His partner, Mary Grace Ibuna, and his daughter, Bernardina Arroyo Tantoco, sought limited letters of administration so that the body could be repatriated and buried in accordance with his expressed wishes. The deceased’s estranged wife, Alicia Arroyo, asserted a prior legal right but did not participate in the English proceedings. The issues were whether the Californian will entitled Bernardina to a grant, whether Ms Ibuna should be appointed jointly, and how the deceased’s wishes affected the court’s powers.

1. Disposition. Limited letters of administration were granted jointly to Bernardina Arroyo Tantoco and Mary Grace Ibuna, enabling them to take possession of the body, transport it to the Philippines and dispose of it in accordance with the deceased’s wishes.
2. English law. There is no ownership in a dead body. The primary duty to arrange proper disposal falls on the personal representatives. An executor appointed by will is entitled to obtain possession for that purpose before probate. The executor may have regard to the deceased’s wishes but is not bound by them. The judge followed and applied the approach summarised in Buchanan v Milton [1999] 2 FLR 844.
3. Human rights. The judge respectfully disagreed with the approach in Burrows v HM Coroner for Preston & Joan McManus [2008] EWHC 1387 (QB) insofar as it treated the deceased’s wishes as capable of requiring variation of ordinary priorities through post-mortem human-rights protection. Human-rights concepts did not give the body an independent right to be heard.
4. Grants and special circumstances. The Californian will was capable of recognition under rule 30 of the Non-Contentious Probate Rules 1987, and Bernardina had the prima facie priority as executrix. Under section 116 of the Senior Courts Act 1981, the court could appoint another person where special circumstances made that necessary or expedient. The clear evidence of the deceased’s wishes, supported by the healthcare directive, justified appointing Ms Ibuna jointly with Bernardina.
5. The deceased’s wishes were therefore relevant and important, but they did not have paramountcy. The joint appointment ensured that the executrix and the person identified by the deceased to deal with the disposition of his remains could act together.

This was a first-instance action following interim injunction applications on 3 and 10 February 2012. The judgment itself records no appeal.