Jennyfer Pangou v Rina Nzoulou
| Jurisdiction | England & Wales |
| Judge | Master Shuman |
| Judgment Date | 07 January 2022 |
| Neutral Citation | [2022] EWHC 147 (Ch) |
| Docket Number | Case No: PT-2021-000796 |
| Court | Chancery Division |
In the Matter of the Estate of Augel Steeves Andrex Pangou (Deceased)
[2022] EWHC 147 (Ch)
CHIEF Master Shuman
Case No: PT-2021-000796
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
PROPERTY, TRUSTS AND PROBATE LIST (ChD)
7 Rolls Buildings
Fetter Lane
London EC4A 1NL
The Claimant appeared in person
Mr Kaihiva appeared on behalf of the Defendant
THE CHIEF MASTER:
On 3 June 2021, Augel Pangou died at his home at 19 Stanhope Road, Swanscombe, Kent. The cause of death was sudden adult death syndrome. He was only 45 years old, having been born in Brazzaville, Congo on 28 April 1976. He left his partner of 13 years, Rina Nzoulou, who is the defendant in this claim. She was pregnant with their third child, a son born in November 2021 named Augel, after his father. I will refer to the parties and relevant people in this claim by their first name, and I mean no disrespect by doing so.
Augel has six children, Ryela aged 10, Michael aged 7 and Augel who is a baby, and three children from his dissolved marriage to Sylvie. Jennyfer, the claimant, who is aged 21 and lives in France. Leah aged 16 remains living with Rina. Chloe aged 14, was living with Augel and Rina since either 2012 or 2013 but has now returned to live in France. In addition, Rina's two children by an earlier relationship, Emmanuel and Lisa, who are both adults, lived with Augel and Rina.
I noticed in the course of evidence that when Emmanuel mentioned Augel, he referred to him as his father and then corrected himself to say “stepfather”. What is clear from the evidence before me is that Augel was a devoted father, a loving partner to Rina, and a man loved by his family and by his friends. The loss that his family both here, in France and in the Congo and his friends here, are suffering is compounded by the fact that his family is involved in litigation in the High Court over the disposal of his body.
Augel died intestate. Despite having been Augel's partner for 13 years, the mother of three of his children, bringing up another one of his children for 8 to 9 years, and Leah who she continues to bring up, the position for Rina is that the law has not caught up with society. So some people who choose not to enter into marriage or into a civil partnership but rather to live together in a loving and fully committed relationship as cohabitees, are caught by the intestacy rules. This means that Rina has no automatic right to apply for a grant of letters of administration. Instead, rule 22 of The Non-Contentious Probate Rules 1987 (the NCP) provides an order of priority for grants in cases of intestacy. In the order of priority, without a surviving spouse or civil partner, the next category of people who can obtain a grant are the children of the deceased. So that means in this case that the person entitled to obtain a grant in the first instance is Jennyfer, the only adult child of Augel.
Jennyfer has brought a Part 8 claim, issued on 10 September 2021, against Rina and in the claim form she sets out the orders that she seeks:
(1) an order that the claimant is the person entitled to possession of the body of the deceased and to make arrangements for its disposal, including the mode and place of burial; and
(2) insofar as necessary, a limited grant of letters of administration pursuant to section 113 of the Senior Courts Act 1981, the limited purpose being the disposal of Augel's body.
Jennyfer's case is that Augel's body should be taken to France for burial so that his final resting place is close to that part of his family who lives in France, which includes his mother Yvette, two of his six children, Jennyfer and now Chloe, his two sisters and extended family members.
Rina opposes the claim and seeks an order under section 116 of the Senior Courts Act 1981 appointing her as administrator of the estate of Augel. She wishes Augel to be buried in England, his home for the last 13 years of his life, where she and most of his children live, and in accordance with his written wishes.
The Law
Section 116 of the Senior Courts Act 1981, provides that:
“(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.”
In order to engage the power under section 116, the court must be satisfied, firstly, there are special circumstances which may displace the order of priority set out in rule 22 of the NCP, and secondly, that it is necessary or expedient to displace the normal order of priority.
In Buchanan v Milton [1999] 2 FLR 844, there was a dispute between the natural mother and the adopted mother as to who should be granted letters of administration. Both wished to take possession of the body of their son in order to dispose of the body, either in Australia or in the United Kingdom. The adoptive mother was the person entitled to a grant of letters of administration. The son was an indigenous Australian and his natural mother wished him to be buried in Queensland where he was born. His adopted mother and the mother of his daughter wished him to be buried in the United Kingdom where he had lived the last 20 years of his short life. He died aged 26 in a road traffic accident. The special circumstances relied upon were fact-sensitive to that case. Hale J (as she then was) set out four discrete factors that the court should consider: (1) the views of the natural family; (2) the views of the adoptive family; (3) the interests of his child; and (4) the wishes of the deceased. The court did not accept there were special circumstances and so the adoptive mother was the person entitled to a grant and to have the body released to her.
There is no property in the body of a deceased person so the deceased cannot bind his personal representatives as to how his body should be disposed of, but of course the wishes of the deceased are important and should be taken into account. In cases where there is a dispute, usually the court only needs to decide to whom the body should be released to, although in suitable cases it does have inherent jurisdiction to give directions as to how the body should be disposed of. In Hartshorne v Gardner [2008] 2 FLR 1681, Proudman J considered she could decide a combination of place and method of disposal of the body, which had not been proposed by the parties.
In Oldham Metropolitan Borough Council v Makin [2017] EWHC 2543, a case concerning the disposal of the body of Ian Stuart Brady, the then Chancellor made an order under section 116 limited to the disposal of the deceased's body and gave directions as to the method by which the deceased's body should be disposed of and said that although the deceased's wishes were relevant, they were not determinative.
The Claim and Evidence
Turning then to the evidence before me, the claim was originally listed for final hearing on 16 December 2021. Two days prior to that hearing, Jennyfer's solicitors came off the record. She attended the hearing remotely from France with no interpreter assisting her and with little understanding in English. Given my concerns that Augel had died on 3 June 2021 and that his body needed to be disposed of promptly and with all due decency, exceptionally, arrangements were made for a court appointed interpreter to be available for the adjourned final hearing. I also caused my order dated 21 December 2021 to be translated into French.
I raised back on 12 October 2021, when Jennyfer had counsel representing her and solicitors, whether permission from the relevant French competent authority would be needed in order for her to give oral evidence from France to a court in England.
I have already given a ruling at the start of the hearing as to whether Jennyfer and Yvette, both of whom are in France, could give oral evidence. They could not, in my judgment. In summary, in my order dated 21 December 2021, I recited that the French competent authority needed to give permission for a party and witness to give direct evidence from France, in accordance with the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters. At paragraph 3 of the order it was...
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