Ofori-Kuma v Ofori (Burial or Cremation)

In a dispute over a deceased person’s burial or cremation, the statutory order of priority for a grant of administration is the starting point. Under Senior Courts Act 1981, s 116, the court first asks whether special circumstances exist and then whether it is necessary or expedient to appoint someone outside the ordinary priority under rule 22 of the Non-Contentious Probate Rules 1987. The inquiry is broad and fact-specific. The deceased’s wishes, family relationships, cultural or religious practices and closest connection may be relevant, but none automatically prevails. Personal wishes are relevant but not determinative. General custom cannot replace evidence of individual wishes. A limited grant decides who may arrange disposal; the inherent jurisdiction may address method in a proper case but is normally secondary to s 116.

Margaret Ofori-Kuma died suddenly, leaving three adult daughters. Her mother and sister sought authority to arrange a burial, relying on an alleged private statement against cremation and on Akyem Abuakwa family custom. The daughters said that Margaret had consistently wished to be cremated. The applicants issued a Part 8 claim seeking declaratory relief under the High Court’s inherent jurisdiction and, alternatively, a limited grant under s 116 of the Senior Courts Act 1981. An interim injunction prevented funeral arrangements. The central issue was whether the alleged wishes, family relationships or customary evidence amounted to special circumstances justifying departure from the daughters’ priority under rule 22 of the Non-Contentious Probate Rules 1987.

1. Jurisdiction and priority. The applications were dismissed. The court treated s 116 of the Senior Courts Act 1981 as the appropriate statutory framework because rule 22(1)(b) of the Non-Contentious Probate Rules 1987 gave the deceased’s children priority over her mother and sister. Following Bains v Arsalan [2026] EWHC 1597 (Fam), the court should normally use s 116 before resorting to the inherent jurisdiction.
2. Applicable test. The inquiry under s 116 is two-stage: identify special circumstances capable of displacing the ordinary priority, then decide whether it is necessary or expedient to appoint another administrator. The assessment is broad and fact-specific. The court may consider the deceased’s wishes, closest connection, family requirements, biological relationships, parental responsibility and cultural or religious factors. No factor has automatic precedence. The deceased’s wishes may be considered but are not determinative. General assertions of custom cannot replace evidence of personal wishes. A limited grant determines who has power to arrange disposal, rather than directing where or how it must occur, as explained in Anstey v Mundle [2016] EWHC 1073 (Ch).
3. Application. The court accepted the daughters’ consistent evidence that Margaret wished to be cremated and rejected the applicants’ account of a contrary statement. The claimed customary evidence did not establish special circumstances. The court was not required to resolve competing spiritual or cultural values as such, and the statements about customary law were not expert evidence because no application had been made under Part 25 of the Family Procedure Rules 2010. The family meeting and subsequent evidence supported the conclusion that Margaret’s wishes should be honoured.
4. Orders. A limited grant was made to the three daughters to obtain Margaret’s body and arrange her funeral and cremation. The injunction was varied to prevent anyone else from making funeral arrangements. The applicants were ordered to pay the respondents’ costs, summarily assessed if not agreed.