Y v Z

A document is not a will merely because it appoints someone to arrange a funeral. It must contain a revocable testamentary disposition of property and be made with the necessary testamentary intention.

Where the validity of a purported will is not established, the High Court may use its inherent jurisdiction to give directions for the respectful and prompt disposal of human remains. The relevant considerations include the deceased’s wishes, the reasonable requirements and wishes of the grieving family, the deceased’s closest location of connection, and disposal with proper respect and without further delay.

The claimant, the deceased’s mother, sought authority to arrange the burial of her son and relied on a document appointing her as executor and directing that she oversee his funeral. The defendant, the deceased’s widow, challenged the document’s validity and sought burial in London, near the family home.

The claim proceeded as a Part 8 claim concerning the validity of the document, the court’s powers under Senior Courts Act 1981, and its inherent jurisdiction. The central questions were whether the document was a valid will and, if not, who should arrange the funeral and where the deceased should be buried.

1. The purported will was not a will. Applying Re Berger (Deceased) [1990] Ch 118, the document did not contain a revocable testamentary disposition of the deceased’s property. It therefore could not be recognised as a will, notwithstanding that the deceased had minimal or no assets.
2. In any event, validity was not established. The claimant bore the burden of proving the document. The court’s suspicion was aroused by the circumstances of its preparation and execution, the late and embellished evidence concerning signature, the claimant’s role in preparing and witnessing it, the document’s exclusive focus on her control of the funeral, and its complete omission of the widow and children. There were also reasonable doubts concerning capacity, knowledge and approval, and possible undue influence.
3. The court had jurisdiction to direct the funeral. On intestacy, the widow would ordinarily be the nearest relative. Independently, however, the court exercised its inherent jurisdiction, informed by the principles discussed in Re Stewart-Brady (Deceased) [2017] EWHC 2543 (Ch) and Burrows v HM Coroner for Preston [2008] 2 FLR 1225. The continuing dispute and delay constituted exceptional circumstances requiring judicial intervention.
4. The relevant factors were those identified in Hartshorne v Gardner [2008] EWHC 3675 (Ch): 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 a proper and respectful funeral without further delay.
5. Those factors favoured burial in London. The deceased had lived there for many years, his widow and children lived there, and they could visit the grave regularly. The widow’s genuine fear of travelling abroad and the children’s evidence were significant. The court therefore ordered the funeral to take place in London on 5 December 2018, or earlier if agreed. It considered, but did not need finally to decide, that the widow’s fear would amount to special circumstances under section 116.

First-instance decision. The judgment records earlier interlocutory hearings before Cheema Grubb J, Choudhury J, Nicklin J, Garnham J and Deputy Master Jefferis, but no prior merits decision was identified.