Ganoun v Joshi & Anor

The court’s discretion under Senior Courts Act 1981, section 116, is a single inquiry: whether special circumstances make it necessary or expedient to appoint someone other than the person normally entitled to administer the estate. A surviving spouse ordinarily has priority in deciding how a body should be disposed of. Intervention is exceptional. A burial’s decency is not an established legal test and should not be determined by declaration where the declaration would pre-empt another decision-maker. An identity declaration may be made where it serves a useful purpose, justice requires it, and there is no material risk of injustice to third parties.

The applicant, the deceased’s mother, sought appointment as administrator under section 116 of the Senior Courts Act 1981 after the deceased had been buried in England by his widow. She wished to pursue an application to the Secretary of State for exhumation and repatriation to Algeria. She also sought declarations that the burial was not decent and that the deceased was known by another name and had a different date of birth.

The court had to determine whether the statutory discretion justified replacing the widow’s priority, whether declarations should be made concerning the burial and identity, and whether the proposed orders would serve a useful purpose.

1. Declarations. The court had jurisdiction to make declarations under CPR Rule 40.20, on the underlying basis of section 19 of the Senior Courts Act 1981. Relevant considerations included justice to the claimant and defendant, whether the declaration would serve a useful purpose, and any special reasons for or against granting it.
2. A declaration about whether the burial was decent was refused. Decency was not an established legal test, but only a possible factor in deciding who should dispose of a body. The declaration would serve only to influence the Secretary of State’s exhumation decision, which the court should not pre-empt.
3. A declaration that the deceased was known by more than one name and was born on 27 October 1983, rather than 27 October 1989, was justified. It would assist the applicant and her family in obtaining a visa to visit the grave, and there was no material risk of injustice to any third party.
4. The court rejected the analysis of section 116 as creating two separate stages. The question was whether, by reason of special circumstances, it was necessary or expedient to appoint a person other than the person ordinarily entitled. Identifying the special circumstances and deciding whether they justified departure from the usual priority formed one process.
5. The widow was ordinarily entitled to appointment under Rule 22 of the Non-Contentious Probate Rules and, absent other factors justifying intervention, had priority over the deceased’s mother in deciding the burial. The circumstances relied on did not justify displacement. The application for appointment was refused. Counsel were directed to agree a draft order and make submissions on costs.

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