Lambo v Kelly-Lambo

In determining arrangements for the disposal of a deceased person’s body, the court’s overriding consideration is respectful and decent disposal without further delay. Subject to that consideration, the court should assess the deceased’s ascertainable wishes, the places with which the deceased had the closest connections, and the reasonable wishes and requirements of family and friends. The court may exercise its inherent jurisdiction as an alternative to appointing an administrator under section 116 of the Senior Courts Act 1981. The question of entitlement to administer the estate may be left for later determination where necessary to secure an immediate and proper burial.

The claimant sought a limited grant authorising disposal of the deceased’s body, relying on section 116 of the Senior Courts Act 1981 and the court’s inherent jurisdiction. The deceased had died intestate and remained unburied for nearly a year. Both the claimant and the defendant asserted that they were his surviving spouse, but the court confined the hearing to disposal of the body and left the disputed matrimonial and intestacy issues for later determination.

The claimant sought burial in Lagos, Nigeria. The defendant sought burial in England. The central issue was where, having regard to the deceased’s wishes, connections and the reasonable wishes of family and friends, the body should be buried.

1. The court could determine the dispute under its inherent jurisdiction, which provided an alternative and equally valid route to the limited grant sought under section 116 of the Senior Courts Act 1981. The issue of who was the deceased’s spouse, and therefore entitled under the intestacy rules, was not determined.
2. Following the approach in Hartshorne v Gardner [2008] EWHC 3675 (Ch), the overriding consideration was that the body should be disposed of with proper respect and decency and, if possible, without further delay. Subject to that, the court considered:
   1. the deceased’s wishes so far as ascertainable;
   2. the places with which he had his closest connections; and
   3. the reasonable wishes and requirements of family and friends.
3. The arrangements proposed by the claimant, involving a commemorative service in England followed by burial on the deceased’s land in Lagos, were respectful and decent and could be implemented without further significant delay.
4. The court accepted the claimant’s evidence that the deceased had expressly wished to be buried in Nigeria. Although he had a substantial connection with the United Kingdom, he retained Nigerian citizenship, land and business interests in Nigeria and close family connections there. He therefore also retained a close connection with Nigeria.
5. The wishes of the deceased’s children and the claimant supported burial in Nigeria. The defendant’s concerns were recognised, but the evidence overwhelmingly favoured repatriation and burial on the deceased’s land, preceded by a commemorative service in the United Kingdom.
6. Statements relied on by the defendant could be considered without hearsay notices, but their weight was limited because the claimant had no opportunity to cross-examine the makers.

The body was to be repatriated to Nigeria for burial, without prejudice to later determination of the parties’ competing claims concerning the estate.