Hartshorne v Gardner: ChD 14 Mar 2008

The deceased died in a motor accident, aged 44. The parties, his mother and father, disputed control over his remains, and requested an order from the court.
Held: The court has such an inherent jurisdiction. Since the claimants had an equal right as his parents to apply for letters of administration, that court could not, by that reason distinguish between them. The authorities suggested that the duty fell on the person with custody of the body in certain circumstances, but no precedent applied to this exact situation. The judge identified factors which were relevant to the exercise of the court’s jurisdiction, although she did not seek to limit the relevant factors to those she listed. The factors she identified were: one, the deceased’s wishes; two, the reasonable requirements and wishes of the family who are left to grieve; three, the location with which the deceased was most closely connected; and, four, to quote the judgment, ‘the most important consideration is that the body be disposed of with all proper respect and decency and if possible without further delay’.
The fact that the deceased made his life in Kington for the last eight years of his life and that his fiancee as well as his father and brother wished him to be buried there, accordingly, outweighed the Defendant’s personal wishes and difficulties in visiting the grave.


Sonia Proudman QC sitting as a Deputy High Court Judge


[2008] EWHC B3 (Ch)




England and Wales


CitedHoltham v Arnold 1986
The court considered how it might decide between the competing claims of different family members to have control over the burial of the deceased. Hoffmann J said: ‘there seems to be no doubt that Mrs Holtham on the one side and the family on the . .
CitedRex v Stewart 1840
It is the duty at common law for a householder under whose roof a person has died to make arrangements for the dignified and decent burial of the deceased, at least in circumstances where the deceased is a poor person in relation to whom no other . .
CitedWilliams v Williams 1882
By codicil to his will the deceased directed that his executors should give his body to Miss Williams; and by letter he requested her to cremate his body under a pile of wood, to place the ashes into a specified Wedgwood vase and to claim her . .
CitedCalma v Sesar 1992
(Australia) The court hearing a dispute between family members as to how the deceased should be buried, declined to hear evidence from them about the deceased’s childhood relationships. There was no good reason why the body should be flown thousands . .
CitedUniversity Hospital Lewisham NHS Trust v Hamuth and others ChD 23-Jan-2006
The body of the deceased had been retained by the hospital pending resolution of legal proceedings relating to his death. No grant had been yet obtained in the estate.
Held: In the absence of anybody else with authority, the hospital having . .
CitedRe Grandison; Grandison v Nembhard ChD 10-Jul-1989
In a case where there is no dispute as to the executor’s entitlement to act in the estate, the right of the executor to decide on the mode of burial is likely to be accorded a high priority. The deceased’s wishes are one of the relevant factors to . .

Cited by:

CitedRe JS (Disposal of Body) FD 10-Nov-2016
Child’s Wish for post-mortem cryonic Preservation
JS, a child of 14, anticipating her death from cancer expressed the desire that her body should receive cryonic preservation in the hope that one day a treatment might be available to allow her to be revived, and proceedings were issued. Her parents . .
AppliedAnstey 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 . .
CitedLambo v Kelly-Lambo ChD 25-Sep-2018
Dispute concerning the disposal of the body of Mr Olawola Akambi Lambo . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 25 March 2022; Ref: scu.267087