The applicant sought to displace, solely for burial purposes, as personal representative a person who was otherwise entitled to a grant.
Held: Hale J said: ‘There is no right of ownership in a dead body. However, there is a duty at common law to arrange for its proper disposal. This duty falls primarily upon the personal representatives of the deceased (see Williams v Williams (1881) 20 ChD 659; Rees v Hughes [1946] KB 517). An executor appointed by will is entitled to obtain possession of the body for that purpose (see Sharp v Lush (1879) 10 ChD 468, 472; Dobson v North Tyneside Health Authority and Another [1997] 1 FLR 598, 602, obiter) even before the grant of probate. Where there is no executor, that same duty falls upon the administrators of the estate, but they may not be able to obtain an injunction for delivery of the body before the grant of letters of administration (see Dobson). Certainly in this case, the persons primarily entitled to such a grant did not secure delivery of the body and had to apply for a grant. Technically, therefore, this case is about who should be granted letters of administration of the estate for this particular purpose.’
‘I accept entirely that the courts should be slow to entertain proceedings such as these. Modern methods of refrigeration may make them possible but they are certainly unseemly. They delay the proper disposal of the body and the normal processes of grieving, while bringing further grief in themselves.’
Hale J
[1999] 2 FLR 844, [1999] EWHC B9 (Fam), [1999] 53 BMLR 176, [1999] Fam Law 692
Bailii
England and Wales
Citing:
Cited – Rees v Hughes 1946
The need to arrange for funerals is a common law obligation ‘in the nature of a public duty’. . .
Cited – Sharp v Lush 1879
An executor appointed by will is entitled to obtain possession of the body for its proper disposal. . .
Cited – Rees v Hughes 1946
The need to arrange for funerals is a common law obligation ‘in the nature of a public duty’. . .
Cited – Dobson and Dobson v North Tyneside Health Authority and Newcastle Health Authority CA 26-Jun-1996
A post mortem had been carried out by the defendants. The claimants, her grandmother and child sought damages after it was discovered that not all body parts had been returned for burial, some being retained instead for medical research. They now . .
Cited by:
Cited – Anstey v Mundle and Another ChD 25-Feb-2016
The deceased had been born in Jamaica, but had lived in the UK for many years. The parties, before a grant in the estate of the deceased, disputed whether he should be buried in England or returned to Jamaica for burial.
Held: Having . .
Lists of cited by and citing cases may be incomplete.
Wills and Probate
Leading Case
Updated: 01 November 2021; Ref: scu.562616