Bernadette Lucretia Atkinson v Central England Co-Operative Ltd & Anor

There is no ownership of a human body. Where a valid will appoints an executor, the executor ordinarily has primary responsibility for deciding how and when the body is disposed of, while giving appropriate weight to the deceased’s wishes.

Under Senior Courts Act 1981, s.116, the court may pass over the executor only in special circumstances. Serious allegations that a will is fraudulent ordinarily require a properly pleaded claim, disclosure, witness evidence and a trial. The court may refuse urgent intervention where the evidence does not presently raise suspicion and delay would leave the body without proper and timely disposal.

The claimant applied urgently for an injunction preventing the cremation of her late father’s body. The body had been returned to the United Kingdom after his death in Jamaica and was being held by the first defendant funeral provider on the instructions of the second defendant, who was the deceased’s daughter.

The second defendant relied on a professionally drafted and witnessed will appointing her as sole executor and expressing the deceased’s wish that his body be cremated. The claimant disputed the will’s genuineness and contended that cremation conflicted with the deceased’s Rastafarian beliefs. The central issue was whether the evidence established special circumstances justifying intervention under s.116 of the Senior Courts Act 1981.

1. Application dismissed. The interim injunction was discharged. The court directed that the claimant could visit the body before cremation if she wished.
2. There is no ownership of a human body. Where a valid will appoints an executor, the executor has primary responsibility for determining how and when the body should be disposed of. The executor may properly take into account, and attach significant weight to, the deceased’s wishes.
3. Section 116 of the Senior Courts Act 1981 permits the court, in special circumstances, to pass over the executor and appoint another person. The question was fact-sensitive, and the court considered the particular evidence rather than treating decisions in other family disputes as determinative.
4. The allegation that the will was fraudulent could not fairly be determined at the urgent hearing. A proper determination would require particularised pleadings, disclosure, witness statements, including evidence from the attesting solicitors, and a trial. The resulting delay was a material consideration.
5. The court’s paramount consideration was that the body be disposed of with proper respect and decency. In the circumstances, that required avoiding further delay. The will appeared regular and rational on its face, and the evidence presently before the court raised no suspicion sufficient to establish special circumstances. The court expressly made no final finding on the will’s genuineness.
6. The evidence concerning Rastafarian beliefs was insufficient to justify intervention. Expert evidence would have been required, and it was generally accepted that although burial was preferred, cremation was not specifically prohibited.