Anstey v Mundle & Anor

The court has an inherent jurisdiction to determine who should have the power and duty to arrange for the disposal of a deceased person's body. It may select the person best able to discharge that duty, even where the court cannot determine the validity of a disputed will.

The relevant considerations include the deceased's wishes, the reasonable wishes of the grieving family, the place with which the deceased was most closely connected, and the need for respectful, decent and prompt disposal. The court directs responsibility for burial, rather than the precise place or manner of burial. A limited grant under Senior Courts Act 1981, section 116, may alternatively be used where its jurisdiction is engaged.

The claimant sought directions concerning the burial of her deceased father, George Henry Carty. Two daughters supported burial in England, while another daughter and a niece supported burial in Jamaica. A purported will expressed a wish to be buried in Jamaica, but its validity was disputed and was not determined in these proceedings.

The application arose after an interim order concerning a possible grant of letters of administration limited to disposal of the body. The central issues were whether the court could determine who should arrange the burial, whether section 116 of the Senior Courts Act 1981 applied, and which factors should govern the exercise of the jurisdiction.

1. Jurisdiction. The parties' proposed use of section 116 raised a difficulty because that provision permits the court to pass over the person otherwise entitled to a grant, whereas the parties sought the selection of one of those persons. The court therefore rested its decision on its inherent jurisdiction, whether arising from its jurisdiction to regulate the administration of estates or otherwise. If section 116 applied, the court would have exercised it in the same way.
2. Applicable considerations. The court adopted the factors identified in Hartshorne v Gardner: the deceased's wishes; the reasonable requirements and wishes of the family left to grieve; the location with which the deceased was most closely connected; and the need for proper respect and decency and, if possible, disposal without further delay.
3. The court found, for the purposes of this decision only, that Mr Carty wished to be buried beside his mother in Jamaica. The finding was based principally on the evidence of Mr Haywood. It was not intended to affect the future probate proceedings, in which the evidence and issues of testamentary capacity, validity and undue influence would remain open.
4. The court gave significant weight to the deceased's wishes, together with the greater number of family members favouring Jamaica. Valerie's greater role in her father's care justified giving her wishes somewhat more weight than those of individual relatives, but not enough to outweigh the other considerations.
5. The court could not direct precisely where or how the body should be buried. It could direct who should have the power and duty to arrange the burial. The court was minded to impose that duty on Cynthia, subject to further submissions, with provision for the parties to return to court if burial was not completed promptly. The claimant was ordered to pay the defendants' costs, summarily assessed at £6,000.

This was a first-instance decision of the High Court (Chancery Division). No appeal history is stated in the judgment.