Anstey v Mundle and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Klein |
| Judgment Date | 25 February 2016 |
| Neutral Citation | [2016] EWHC 1073 (Ch) |
| Docket Number | HC-2016-000206,Case No: HC-2016000206 |
| Court | Chancery Division |
| Date | 25 February 2016 |
[2016] EWHC 1073 (CH)
Mr Jonathan Klein (SITTING AS A DEPUTY JUDGE OF THE CHANCERY DIVISION)
Case No: HC-2016000206
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
The Rolls Building
7 Rolls Buildings
Fetter Lane
London EC4A 1NL
Mr A Drapkin (instructed by Hodders Law) appeared on behalf of the Claimant
Ms F Julian (instructed by Streeter Marshall) appeared on behalf of the Defendants
(As Approved)
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.
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.
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."
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.
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.
With this introduction, I turn to the background to this case.
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.
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.
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.
Valerie says that, from about 2011, Mr Carty's health failed, so that, by early 2014, his capacity was being called into question.
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.
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.
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.
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.
Although the proceedings come before me on an interim application, the determination I make will finally dispose of the claim.
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."
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.
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.
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.
Because I am...
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Burial Disputes
...child’s body and making the funeral arrangements. The test in Hartshorne v Gardner was also applied in Anstey v Mundle and Another [2016] EWHC 1073 (Ch), where the issue was whether the deceased should be buried in the United Kingdom or Jamaica, where he was born and where he had expressed ......
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Table of Cases
...431, ChD 198 Anaghara v Anaghara and Others [2020] EWHC 3091 (Ch), [2021] 2 FLR 331, [2021] 2 P&CR 20 162 Anstey v Mundle and Another [2016] EWHC 1073 (Ch), [2016] WTLR 931, [2016] Inquest LR 47 152 Ashman v Thomas [2017] EWHC 3136 (Ch), [2018] 1 WLUK 68 69 Atter v Atkinson (1869) LR 1 P&D ......