England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		The Rolls Building 7 Rolls Buildings Fetter Lane London EC4A 1NL
		25th February 2016

1. MR JUSTICE KLEIN: In this case I am asked to resolve a dispute which has arisen between the three daughters and a niece of George Henry Carty who died on 10 January 2016. In this judgment I refer to the living protagonists by their first names. I do so simply for ease. I hope they understand that I mean no disrespect.
2. At its heart, the dispute concerns where Mr Carty's body should be buried. Two daughters, Valerie, the claimant, and Stephanie, contend that Mr Carty's body should be buried in England. Sonia, Mr Carty's third daughter, and Cynthia, Mr Carty's niece, contend that his body should be buried in Jamaica.
3. This case is a sad one. Mr Carty died over six weeks ago and yet, only because of this dispute, he has not been laid to rest; an emotive but apt phrase in my view. Every person deserves dignity in death and those who grieve a person's passing can rightly be heard to say that their grief should not be prolonged more than is absolutely necessary. I entirely associate myself with what Hale J said in Buchanan v Milton, a case to which I make further reference, below:

"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."

4. But I shall make one further point in this context. Having heard from the main protagonists and some of Mr Carty's extended family, I am entirely satisfied that their strongly held views are genuinely held. I am satisfied that both Valerie and Stephanie, on the one hand, and Sonia and Cynthia, on the other, have taken their respective stances because they genuinely believe that those stances reflect Mr Carty's wishes. I do not believe that the claim, on the one hand, or its opposition, on the other, was for any ulterior, underhand reason.
5. Because of the length of time Mr Carty's body has remained unburied, I regard the determination of the present dispute as somewhat urgent. As I indicated to the parties yesterday, for that reason I am handing down judgment today, which is the first opportunity I can deliver an ex tempore judgment, rather than reserving the judgment. Inevitably, as a result, this judgment is briefer than a judgment which has been reserved for some time might have been. But so that the parties are in no doubt, I wish to make it clear at the outset that, in reaching my decision, I have considered at length all the evidence which is before me and counsel's detailed written and oral submissions.
6. With this introduction, I turn to the background to this case.
7. Mr Carty was born on 20 October 1935 in Jamaica, but he came to the UK in the 1960s and worked as a transport engineer. Although Mr Carty had a property in Jamaica, his last visit to the island was in 1998 for his sister's funeral. It has been suggested that Mr Carty had no wish to visit Jamaica because a rumour had been spread there, of which, it is presumably said, he was aware, which would have put him in danger if he visited the island.
8. As I have said, Mr Carty had three daughters. Valerie, the claimant, lives in London, as does Sonia, the first defendant. Stephanie, who is not a party to the claim but who supports Valerie, lives in Jamaica.
9. Valerie says she was her father's primary carer. Cynthia disputes this and contends that she was Mr Carty's primary carer and was a donee of a lasting power of attorney to assist in that respect. It was, she says, she who alerted the authorities, which led to the discovery of Mr Carty's body. Valerie accepts that, when Mr Carty was attended by paramedics in August 2014, Cynthia was with him. Sonia also says that Valerie and Mr Carty were not close. There is, though, evidence that Valerie supported Mr Carty in later years and Cynthia accepted in cross-examination that Valerie was in contact with social services in connection with Mr Carty's care. Stephanie says that she spoke regularly to her father. Sonia disputes this. Valerie says that Mr Carty had little contact with Sonia. Sonia appears to agree with this.
10. Valerie says that, from about 2011, Mr Carty's health failed, so that, by early 2014, his capacity was being called into question.
11. There is a will or purported will of Mr Carty dated 21 July 2014. Without expressing any view on the validity of the document, I shall refer to it in this judgment as "the will". The will provides for the appointment, as executrices, of Cynthia and Valerie and contains the following wish, "I wish to be buried in Jamaica beside my mother." It is accepted by all the parties that if Mr Carty's will is invalid, his three daughters are equally entitled to letters of administration. Valerie calls into question the validity of the will for the following reasons. Properly she does not ask me to determine the validity of the will at this hearing. Valerie has called into question Mr Carty's testamentary capacity. Valerie suggests that Mr Carty may have made a later will. Valerie suggests that Mr Carty may have been unduly influenced in the making of the will. Valerie suggests that Mr Carty did not know and approve of the will's contents. Valerie hints in effect, although in not so many words, that she may wish to argue that parts of the will may have been forged.
12. Cynthia says that Mr Carty told her that he wanted to be buried in Jamaica. Stephanie says that Mr Carty told her that he did not want to be buried in Jamaica, although in cross-examination she said that her father did not tell her where he wanted to be buried. I return to this evidence below. It may be that Joan Davy supports Valerie's case, but her statement is unsigned and appears to have been prepared on her behalf. I do not place any real weight on her evidence or on the evidence of the witnesses who were not called and whose statements are unsigned. I know nothing of or insufficient about the provenance of those statements to attach any real weight to them. Jacqueline Smith's evidence, although based on what appears to have been an old conversation, is that Mr Carty expected a relative living in Jamaica, Yurel, to make his funeral arrangements. She and others talk about Mr Carty's fondness for Jamaica or at least his time growing up there.
13. Following Mr Carty's death, concerned that his body might be removed from the jurisdiction for burial in Jamaica, Valerie applied for an injunction to restrain the removal of the body.
14. Most recently, on 3 February 2016, Henderson J ordered that at the hearing before me the court "will consider to whom a grant of letters of administration under Section 116 of the Senior Courts Acts 1981 shall issue, such grant to be limited to the disposal of the body of" Mr Carty.
15. Although the proceedings come before me on an interim application, the determination I make will finally dispose of the claim.
16. So the general issue before me is: who should be given the power and the duty to arrange for the disposal of Mr Carty's body? More particularly I have to consider to whom, if anyone, a section 116 grant ought to issue. Section 116 provides as follows:

"(1) If by reason of any special circumstances it appears to the High Court to be necessary or expedient to appoint as administrator some person other than the person who, but for this section, would in accordance with probate rules have been entitled to the grant, the court may in its discretion appoint as administrator such person as it thinks expedient.

"(2) Any grant of administration under this section may be limited in any way the court thinks fit."

17. The parties are currently agreed that the section 116 jurisdiction is engaged but they have both asked me to decide who of Valerie, on the one hand, who is apparently entitled to a grant on any basis, or Sonia and Cynthia, on the other hand, who are respectively apparently entitled to a grant on the basis of intestacy and on the basis that the will is valid, should obtain a grant under that section for the limited purpose of burying Mr Carty's body.
18. To my mind this reflects a fundamental problem with the parties' recourse to section 116. That section entitles the court to pass over the person who would otherwise be entitled to a grant. I am not asked to do that. I am asked to select, for the purposes of the limited grant, one of the people who would otherwise be entitled to a grant. It is right that, in analogous circumstances, Patten J in Scotching v Birch [2008] EWHC 844 (Ch) accepted that the section 116 jurisdiction is capable of being engaged, but it is not clear to me that any issue was taken before or by the judge as to the applicability of that section.
19. In the light of the authorities to which I refer below, I believe, and the parties accepted, that the court has, in this case, on its particular facts, an inherent jurisdiction, whether as part of its jurisdiction to regulate the administration of estates or otherwise, which is capable of being exercised so as to determine who should be responsible for the burial of Mr Carty's body.
20. Because I am concerned whether, on the particular facts of this case, the section 116 jurisdiction is engaged, I prefer to rest my decision on the court's inherent jurisdiction. But, to be clear, if the court does have, in this case, a section 116 jurisdiction, on the facts of this case I would have exercised that jurisdiction to order that a limited grant, for the purpose of disposing of Mr Carty's body only, should issue to the party or parties who as a result of this judgment will have conduct of the burial.
21. I now turn to consider the relevant authorities.
22. Buchanan v Milton [1999] 53 BMLR 176 is the first in time. That was a case in which the applicant sought to displace, solely for burial purposes, as personal representative a person who was otherwise entitled to a grant. In that case Hale J said:

"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 Ch 659; Rees v Hughes [1946] 2 All ER 47, [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 Ch D 468 at 472; Dobson v North Tyneside Health Authority (1996) 33 BMLR 146 at 150, [1997] 1 WLR 596 at 600, obiter), even before there has been a 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)."

It is clear therefore that the personal representatives of a deceased, whomever they may be, have a duty to arrange the proper disposal of a dead body.

23. University Hospital Lewisham NHS Trust v Hamuth [2006] EWHC 1609 (Ch) is the second in time. In that case, the claimant was in possession of the deceased's body and sought a declaration from the court permitting it to dispose of the body in the face of opposition from the persons who may have been entitled to a grant of representation. In that case Hart J accepted that a person lawfully in possession of the body has, subject to the claims of others who have the better right to make arrangements for the disposal of the body, both the duty and the right to make such arrangements. The question before the judge was how that duty should be exercised. It is implicit in the judgment, in my view, that the judge took the view, rightly I believe, that the court can direct who should be responsible for ensuring that a body is disposed of and the order of the court will be binding on the parties to the claim.
24. Hartshorne v Gardner [2008] EWHC 3675 (Ch) is the third case in time. In that case, Ms Sonia Proudman QC, sitting as a Deputy High Court Judge, was invited to exercise the court's inherent jurisdiction to direct to whom the deceased's body should be released for the purposes of its burial. The judge accepted, as Hart J had apparently done before her, that the court has such an inherent jurisdiction. In that case, the claimant and the defendant were equally entitled to a grant of representation. It is perhaps notable that the judge did not exercise any section 116 jurisdiction. In that case 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.
25. 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". I have concluded that in this case those are also the relevant factors which I should consider.
26. I was also referred to Dobson v North Tyneside Health Authority, Borrows v HM Coroner for Preston and Ibuna v Arroya, but, on the particular facts of this case, I do not obtain any particular assistance from those cases.
27. I turn then to consider Mr Carty's wishes. I wish to make it very clear that the conclusion I have reached about Mr Carty's wishes is based on the evidence before me, which might be only a fraction of the evidence available to the court trying the expected probate action. More than that, I wish to make clear that neither that conclusion nor the reasons for it are to carry any weight in the probate action. The parties must understand that a judge trying the probate action is entitled to and may very well reach very different conclusions on the same issues. With that caveat firmly in mind, I have concluded that Mr Carty wished to be buried next to his mother and so in Jamaica. The reasons for my conclusions are as follows.
28. There has been no determination yet as to Mr Carty's testamentary capacity or as to his capacity to express burial wishes. The capacity needed for an expression of burial wishes may be different to that required for valid testamentary dispositions. I am presently inclined to think that a lesser degree of capacity is needed for the expression of burial wishes than for valid testamentary dispositions. But I heard no submissions on the point and it is not a point I need to decide.
29. The will on its face appears to the untrained eye to have been written by Mr Carty and properly executed. Recognising that it was apparently written by a lay person whose facility with English, evidenced by the documents on which Valerie relies, was strictly not perfect, in broad terms the will is rational on its face. There is, too, a presumption that Mr Carty was capacitous.
30. Taking all these matters into account, I have concluded that I can give some weight to the expression of burial wishes in the will. However, Mr Drapkin is right to urge me to give little weight to that expression of wishes. I say no more than that the circumstances of the making of the will were, by all accounts, unusual. Further, I confess that, on the subject of the making of the will in particular, I found Cynthia, who on her own account provided practical support to Mr Carty in the arrangements for the making of the will, a poor witness. She was vague about those arrangements and it seemed to me that, to the extent that she gave any evidence, she was largely speculating about what might have happened. It follows, therefore, that, in concluding that Mr Carty wished to be buried next to his mother in Jamaica, I attach only a little weight to the expression of wishes in the will.
31. Cecil Haywood gave evidence on behalf of Sonia and Cynthia. He said:

"I visited Mr Carty for a third time in the summer of 2014 on my own. We were talking about our families and he spoke of his family in Jamaica. Mr Carty said that it was his desire to go home. By this I understood he meant Jamaica. He later said in conversation that his desire was to end up in Jamaica…I visited Mr Carty for a fifth time again at his home and whilst completing his will Mr Carty told me he wanted to be buried in Jamaica next to his mother."

32. I found Mr Haywood to be an impressive witness. He had a clear recollection and appeared to me to be doing his best to assist the court. He has no interest in the outcome of this claim. His discussion with Mr Carty as to burial arrangements was made when only the two of them were present. I accept that Mr Carty did tell Mr Haywood that he wished to be buried in Jamaica and next to his mother. To my mind, this evidence is notable because Mr Carty was willing to express his views to someone with whom he had only recently become friends.
33. The will to which Mr Haywood refers is not the will to which I have already made reference. I have considered, therefore, whether Mr Haywood's evidence is thereby called into question. I am satisfied that it is not. Not wishing to trespass on the territory of the court trying the probate action, I shall say simply that there are possible circumstances in this case which can perfectly legitimately explain the existence of two different documents in the summer of 2014. More than that, as I have said, I found Mr Haywood to be an impressive witness and I am therefore satisfied that his evidence as to Mr Carty's burial wishes is true, whatever the circumstances surrounding the making of the wills in 2014. A further aspect of Mr Haywood's evidence ought to be noted. It appears that, in his discussions with Mr Carty, Mr Carty expressed a fondness for Jamaica, for his youth and his young adulthood there, and for his family there. Or if it is too much to say that Mr Carty had a fondness for Jamaica and his life there, I am satisfied that he spoke of those matters without any apparent sadness or discomfort. In reaching my conclusion as to Mr Carty's burial wishes, I have placed considerable weight on Mr Haywood's evidence.
34. As I have noted above, Cynthia says that Mr Carty told her that he wanted to be buried in Jamaica. In the light of my already expressed concerns about her performance as a witness, I place no weight on that evidence.
35. Stephanie says that Mr Carty told her that he did not want to be buried in Jamaica, although in cross-examination she said that her father did not tell her where he wanted to be buried. Mr Drapkin is right to say that, semantically, the two statements are not strictly inconsistent. However, in the context in which Ms Julian cross-examined on this point and in the context in which Stephanie gave her answer to Ms Julian's questions, I am satisfied that Stephanie did resile somewhat in cross-examination from what she said in her witness statement. I therefore place only a little weight on Stephanie's evidence and what weight I do place on it is significantly outweighed by Mr Haywood's evidence.
36. Mr Drapkin suggested that Mr Carty made a deliberate decision not to visit Jamaica during his lifetime, when he had the opportunity to do so, and so he is unlikely to have wanted to have been buried there. Whilst I agree that Mr Carty did not visit Jamaica after 1998 and whilst I agree that he appears to have had the opportunity to do so, both factors which I must weigh in the balance, I am not satisfied, on the evidence, particularly in the light of the discussions with Mr Haywood, that Mr Carty made a deliberate decision not to visit Jamaica in his lifetime. In any event, any danger he faced visiting Jamaica is likely to have been faced by 1998 when he did visit. Even if Mr Carty resolved not to visit Jamaica in his lifetime, I do not think that it follows that he did not want to be buried there. It may be argued with equal force that someone who feels unable to return to the country of his birth during his lifetime, but who has the opportunity to be buried there, may well take up that opportunity. In this case, particularly bearing in mind the undisputed closeness between Mr Carty and his mother and the fact that the ties to his children were not particularly stronger than his ties to his extended family -- a subject to which I return below -- I have concluded, even if Mr Carty chose not to return to Jamaica during his lifetime, that that does not undermine my conclusion that he wished to be buried next to his mother and so in Jamaica.
37. I turn to the wishes of Mr Carty's family. Broadly, the family is split as to where Mr Carty's body should be buried. The following want his body to be buried in England: Valerie, Stephanie, and Jacqueline Watson-Sullivan. The following want or apparently want -- some of the statements are unsigned -- his body to be buried in Jamaica: Sonia, Cynthia, Jonathan Alexander, Cocheta Allison, Alda Oldfield, Caroline Allison, Solomon Carty, Sandra Thompson, and Shereze Treasure.
38. Mr Drapkin makes a point that I am not obliged to attach equal weight to the views of the different family members. He urges me to attach great and particular weight to the views of Mr Carty's daughters, two of whom favour a burial in England.
39. Whilst it might be, in many families, that a person is closest to his children, that is not always the case. In this case I have heard detailed, and to a degree conflicting, evidence about Mr Carty's relationship with his extended family. I do not believe that I have to reach any particular conclusions as to that conflicting evidence because I have come to the conclusion that, although Mr Carty was close to at least Valerie and Stephanie, he was, because of his own personal history, equally close to other members of his extended family and for that reason I do not accord any significantly greater weight to the views of his children than I do to the views of his extended family.
40. Having said that, I am satisfied that Valerie did, on the evidence before me, play a more significant role than other family members in her father's care in his later years. She is to be commended for having shouldered that burden in what, from what I have heard, seem to have been difficult circumstances. It seems to me to be right that her wishes as to the location of her father's burial should therefore be accorded somewhat more weight than the views individually of the other family members.
41. Although Mr Carty lived for many years in England, I cannot say that he was significantly or any more closely connected with England than with Jamaica. In reaching this conclusion I bear in mind the conversations with Mr Haywood to which I have referred.
42. Finally, in deciding who should have the duty to bury Mr Carty's body, I need to consider who is most likely to carry out that obligation with respect for Mr Carty and with due expedition. Bearing in mind that I have found the motives of all the parties to be honourable, I do not think that any one of them will show any less respect for Mr Carty than the others. I do, though, need to consider the practicalities of a burial in Jamaica as against a burial in England.
43. Sonia explains that she is not well and in any event has caring responsibilities. Cynthia, too, explains in her witness statements that she is unwell and is experiencing difficulties at work. However, Cynthia did tell me at the hearing that she was well enough to carry out the funeral and burial arrangements and that she had discussed with the extended family the financing of those arrangements.
44. I have some reservations about the truth of those assertions in the light of the submissions sent to me by Cynthia whilst I was drafting this judgment. Nevertheless, Ms Julian told me, both before and after the receipt of those submissions, the defendants' instructions are that, in the first instance, the extended family will be able to and will finance those arrangements. This is a matter to which I will have to return.
45. I have come to the conclusion that it would be most proper for Mr Carty to be buried in Jamaica. As I have said, I have concluded that his wish was to be buried next to his mother and so in Jamaica. To my mind, that this was Mr Carty's wish is a particularly weighty factor. That wish is supported, of course, by the preponderance of views of Mr Carty's family. It is right of course that Valerie's view is that Mr Carty should be buried in England. Whilst, as I have said, I do give weight to that view, I think that Mr Carty's own wishes, as I have found them to be, together with the more generally held view in the family, outweigh Valerie's preference.
46. In reaching this conclusion I have borne in mind the concerns already expressed about the capability of Sonia and Cynthia to arrange for an expeditious burial in Jamaica. I think that rather than justifying an English burial, my concern can be addressed by a provision in the court's order which allows the parties to return to court in the event that Mr Carty is not buried, say, by a particular date, in which case the court can consider the reasons why and, if it thinks it appropriate, order that Valerie has conduct of the burial.
47. In the light of the authorities, I do not think that the court can determine or direct where or how Mr Carty is to be buried. What the court can do is to direct who has the power and duty to bury Mr Carty. In the light of my conclusion that it would be most proper for Mr Carty to be buried in Jamaica, I am presently inclined to order that that duty is imposed on Cynthia who, from my observation, is more able to give effect to a Jamaican burial than is Sonia; but I will hear counsel further on this point.
48. Some care will need to be taken in the wording of the order. It will need to give effect to the decision I have reached, and it will have to take into account the consequences of my findings with respect to Henderson J's previous orders.
49. Subject to further submissions, I am presently inclined to agree with Mr Drapkin that the order can also say something about the ultimate burden of reasonable funeral and burial costs. On all these matters I will hear from counsel.
50. Before finishing, I have two further points to make. First, a lot of things have been said during the course of this litigation which cannot be unsaid. If the probate action is like these proceedings, there will similarly be accusations made which may or may not be true but which are personal. I make a plea to each and every member of Mr Carty's family to come together, even if only temporarily, to give Mr Carty a dignified funeral and burial. I would be profoundly sad if any one member of his family felt that they were excluded from any part of the process of mourning Mr Carty's death.
51. Secondly, I wish to express my thanks to Mr Drapkin and Ms Julian. This has been a difficult case in which the parties and the witnesses have expressed strongly held views. Both counsel have dealt with those views and the evidence generally with sensitivity. They have also assisted me greatly with some difficult legal points raised for the first time by me at the hearing.

[After further submissions]

JUDGMENT ON COSTS
52. I think that the proper order for costs in this case is that the claimant shall pay the defendants' costs, to be summarily assessed. I take the view that this was hostile litigation of the normal sort. I do not regard any of the special rules that apply in certain probate cases to be analogous and in particular I do not think that this case is analogous to the cases where the validity of a person's will is called into question by his mode of living or his own conduct. As I indicated in my judgment, I am entirely satisfied that Mr Carty did wish to be buried next to his mother in Jamaica. Whilst I understand Mrs Anstey's initial concern, it is not at all clear how the breakdown in communications occurred. In any event the significant costs in this case are likely to have been borne after Mrs Anstey became aware of the contents of Mr Carty's will. Mrs Anstey took the risk of litigation that litigants generally take and, in those circumstances, it seems to me the Defendants, having succeeded, should have their costs which I will summarily assess.

[After further submissions]

53. It now falls to me to summarily assess the costs of the defendants. It seems to me that, certainly on first appearances, Mr Drapkin does have a point, to a degree, that it appears there is likely to have been some duplication of work. Ms Julian's explanation as to why both the trainee and the grade A fee earner have incurred the hours they have does not persuade me that there was not duplication. Indeed, her explanation suggests there is likely to have been duplication. I am also a little concerned about the reference, in item (2) on the schedule of work done on documents, to additional documents from Dixian when neither Ms Julian nor her clients can give me any explanation as to who Dixian is.
54. Taking a broad brush approach is what I think I must do on summary assessment. I bear in mind that the grand total sought is relatively modest. I remind myself the hearing was a day's hearing. There are very few cases that I am aware of in the High Court where, for a day's hearing, a firm charges less than £10,000. What I propose to do is to summarily assess the costs at £6,000.