Adekemi Adewunmi Osawese Otitoju v Benedicta Ngozi Onwordi

In urgent proceedings concerning funeral arrangements, the court may make a provisional assessment of disputed evidence without determining the ultimate validity of a will. An apparently regular will attracts presumptions of formal validity and testamentary capacity. A fingerprint may satisfy the statutory signature requirement if intended to authenticate the will.

Under section 116 of the Senior Courts Act 1981, the existence of special circumstances and the necessity or expediency of appointing a person other than the usual administrator form one evaluative process. A challenge to the will, family preferences, and disagreement over burial or cremation did not justify passing over the prima facie executors.

The proceedings concerned competing applications about possession of the body of Peter Adebayo Otitoju and responsibility for arranging his funeral. His daughter, Ms Otitoju, initially obtained an injunction restraining his former partner, Ms Onwordi, from taking possession of the body. Ms Onwordi later applied to set that order aside, relying on a will appointing her daughter, Ms Adesanya, and another person as executors.

Ms Otitoju challenged the will on grounds including execution by fingerprint, capacity, knowledge and approval, and alleged irregularities concerning its execution in hospital. A linked claim by Ms Adesanya sought recognition of the executors’ entitlement to arrange the funeral. The central issues were whether the will should be treated as valid for the immediate funeral decision and whether section 116 of the Senior Courts Act 1981 justified passing over the named executors.

1. Disposition. The order made by Roth J was set aside. The executors named in the will were declared entitled to take possession of the body and arrange the funeral. Ms Otitoju was not so entitled.
2. Provisional assessment. The court adopted the approach in R (Haqq) v Inner West London Coroner, making no concluded findings on the validity of the will. The immediate decision was based on the apparent weight of the evidence and did not affect any later probate challenge. Without cross-examination, evidence could not be rejected unless it was incredible in light of all the circumstances.
3. Validity of the will. Under section 9 of the Wills Act 1837, a fingerprint can amount to a signature where intended to authenticate the will. The will appeared regular on its face, so the presumption of formal validity applied and had not been rebutted. Its rational appearance supported the presumption of capacity. The professional preparation and solicitor’s attendance provided sufficient evidence of knowledge and approval.
4. Possession of the body. There is no ownership in a dead body, but a common-law duty exists to arrange proper disposal. That duty falls primarily on the personal representatives, and an executor appointed by will is entitled to possession for funeral purposes before probate.
5. Section 116. The existence of special circumstances and the question whether it was necessary or expedient to appoint someone other than the person normally entitled form a single evaluative process. The challenge to the will, the children’s wishes, and concerns about the relationship between the deceased and Ms Onwordi did not justify intervention. There was no dispute requiring a different country for the funeral, and the parties’ preferences for burial or cremation did not warrant passing over the executors.