Judgment Of Sheriff Valerie Johnston In Cause Mrs. S.c. Against Mrs. L.m.
| Jurisdiction | Scotland |
| Judge | Sheriff V Johnston |
| Court | Sheriff Court |
| Date | 17 June 2014 |
| Docket Number | A29/13 |
| Published date | 25 June 2014 |
SHERIFFDOM OF TAYSIDE, CENTRAL & FIFE AT FORFAR
2014SCFOR22
Case Reference: A29/13
JUDGMENT
Of
Sheriff Valerie Johnston
in causa
MRS S C
PURSUER
Against
MRS. L M
DEFENDER
FORFAR, 17 June 2014, The Sheriff having resumed consideration of the cause, Finds in Fact:
- The pursuer is S C.
- The pursuer is the widow of Private M C (“the deceased”) .
- The deceased was a soldier who served in the Black Watch, 3rd Battalion, the Royal Regiment of Scotland ("the Regiment") and who latterly resided with the pursuer at Inverness.
- The defender is L M.The defender was the mother of the deceased.
- The deceased was raised primarily in the Methil area of Fife. He left home to join the Army at the age of about seventeen and never returned to live in Methil or with the defender.
- The deceased died in Germany on 14 May 2011. His body was released to the Regiment and returned to the United Kingdom on or about 3 June 2011.
- The relationship between the pursuer and the deceased began in September 2007 and they lived together as spouses from that time until his death. They married on 27 February 2009.
- The deceased’s grandfather died in 2008. At the funeral the deceased was upset and stated that he wanted to be buried near his grandfather. He expressed this wish again at his wedding in 2009.
- The deceased was sent on a tour of duty to Afghanistan in 2009. The Ministry of Defence administration procedure included a check on the existence of a Will for each soldier to be deployed. The deceased did not have a Will and was issued with a pro-forma Will MOD form 106 (revised 9/00) for completion.
- 10.In terms of the deceased’s Will dated 5 March 2009 the defender was appointed as his executor-nominate along with his brother of the full blood. He bequeathed his entire estate to the pursuer. The deceased intended that the pursuer should be both his executor and his beneficiary and had completed the pro-forma Will form 106 with the pursuer as executor. He asked for an explanation of the terms “beneficiary” and “executor”. He was advised by his Platoon Sergeant that the beneficiary was the next of kin and the executor a person who paid the debts and funeral expenses after which the rest of the estate went to the beneficiary. He was told that the same person could not be both.He followed that erroneous advice, destroyed the first Will and completed a new form with the pursuer as beneficiary and the defender and his brother as his executors. He was given no further information verbal or in writing as to the consequences of the appointments made in the event of his death. He did not anticipate that the appointments would permit the defender or his brother to make the arrangements for his funeral.
- 11.On or about 11 June 2009 the deceased was serving in Afghanistan when he suffered shrapnel injuries in an explosion. The soldier he was with was killed.
- 12.The deceased was returned to the United Kingdom for treatment at Selly Oak Hospital in Birmingham. The pursuer was taken to be with him while he was in hospital and looked after him for three weeks there then at their home in Inverness during his recuperation period. The defender did not visit him in Birmingham or Inverness. She spoke to him on the telephone and exchanged some text messages during this time.
- 13.The pursuer and the deceased attended the military funeral held for his dead comrade. They were moved by that experience and the deceased expressed a wish to be buried and to have a military funeral.
- 14.The pursuer’s brother died at the time the pursuer and the defender returned from Birmingham. Her brother’s funeral was held in Forfar and he was buried in a plot paid for by his family in Forfar cemetery. The deceased knew her brother well and was a rope bearer at his funeral.
- 15.When preparing to return to active duty in Afghanistan in 2010 the deceased discussed with the pursuer the funeral arrangements that he would wish to be made in the event of his death. He confirmed a desire for a military funeral and wished to be buried not cremated. He stated that he wanted to be buried wherever the pursuer intended to be buried on her own death. He intended that the pursuer should make the funeral arrangements.
- 16.The deceased intended to leave the Army and settle with the pursuer in Forfar when he was able to do so.
- 17.The deceased had previously made an agreement with a close friend that the survivor would wear pink to the other’s funeral. He was a humorous man and liked bright colours.
- 18.The pursuer intends to be buried with her brother in a family plot in Forfar Cemetery. The deceased was aware of her intention and told her that he wanted to be there with her.
- After the deceased died visiting officers were appointed to assist both the pursuer and the defender. The Joint Casualty and Compassionate Centre of the Service Personnel and Veterans Agency of the Ministry of Defence (“the JCCC”) took responsibility for assisting the pursuer with the funeral arrangements.
- 20.In May 2011 the pursuer's visiting officer indicated that the JCCC would release the body to her and that the Army would follow the deceased’s last known wishes for the funeral, as reported by the pursuer.
- 21.Representatives of the Regiment began to make the arrangements.A representative attended on behalf of the Regiment to inspect and approve Forfar Cemetery and potential venues.A venue was selected and approved in Forfar.
- 22.The defender accepted that as next of kin the pursuer had the right to make the funeral arrangements. On Monday 16 May 2011 the defender’s partner called to speak to the pursuer about the funeral arrangements. He did not speak to the pursuer who was too distressed. The pursuer’s mother advised him that the funeral would be in Forfar and that it was the wish of the deceased that those attending wear bright colours.
- 23.The defender and her partner took offence as they considered that they were being dictated to and an acrimonious dispute arose between the pursuer’s mother and the defender over the wearing of bright colours at the funeral.The acrimony between them has continued and has significantly contributed to the delay in according the deceased a dignified and appropriate burial.
- 24.The defender complained about the proposed funeral arrangements to her visitation officer and the deceased’s Will was consulted. It was established that he had appointed the defender and his brother as his executors and advice was taken by the JCCC about who they should release the body to.
- 25.On 1 June 2011 the pursuer’s visitation officer advised her that the deceased’s body could not be released to her. On 6 June the JCCC intimated to the pursuer that while the Ministry of Defence usually dealt with the closest living relative (next of kin) over the funeral arrangements the defender was named as executor in the Will and her solicitors had indicated that she wanted to have the body released to undertakers of her choice in Fife. The JCCC advised that and under the laws of both Scotland and England the executor retained certain legal rights and responsibilities in regard to ensuring the burial or cremation of the deceased and the intention was to release the body to the defender.
- 26.A meeting was arranged between the pursuer and the defender in an attempt to reach a compromise. The pursuer was distraught, cried and begged the defender to relent. The defender refused to do so. The situation was inflamed by the intervention of the pursuer’s mother and the acrimony between the pursuer’s mother and the defender.
- 27.The defender intimated that she wished to make her own funeral arrangements with interment of the deceased being at a family lair in MacDuff Cemetery, Wemyss, Fife near his late grandfather as that was the wish of the deceased.She made this decision when she became aware of the priority accorded to an executor by the JCCC.
- 28.The pursuer tried to compromise.She indicated she would agree to bury her late husband on his own in Forfar rather than alongside her brother.The defender refused to compromise and continues to refuse. The pursuer has offered a compromise position. All attempts to resolve the matter through court action and mediation have failed.
-
The defender as executor has given priority to her own personal wishes for the funeral arrangements and burial of the deceased as a close family member and has influenced the wishes of others to accord with her own without proper consideration of the pursuer as his widow and the last stated wishes of the deceased.
Finds in Fact and Law
-
The pursuer as widow of the deceased and who was living in family with him at the time of his death is entitled to decide upon and make the arrangements for the funeral of the late M C.
Finds in Law
- An order declaring that the pursuer as widow of the late M C is entitled in law to decide upon and make the arrangements for his funeral should be made.
-
The pursuer as widow of the deceased and who was living in family with him at the time of his death is entitled to decide upon and make the arrangements for the funeral of the late M C.
Therefore:
Sustains the first plea in law for the pursuer: Repels the second plea in law for the pursuer; Repels the first plea in law for the defender; FINDS AND DECLARES that the pursuer being the widow of the late M C is entitled to decide upon and make the arrangements for the funeral of the late M C; Quoad ultra Dismisses the pursuer’s crave two, Dismisses the defender’s crave one; Finds no expenses due to or by either party.
Sheriff
NOTE:
[1] This action was raised in 2013. I heard evidence by way of witness testimony, an affidavit and documents lodged spoken to and agreed. The parties produced written submissions supplemented orally. The cause had been judicially considered before. The pursuer petitioned the Court of Session in an attempt to review the decision of the JCCC to release the deceased’s body to the defender. The cause called before Lord Brodie and parties produced and referred me to his opinion which was accepted as an accurate statement of Scots law. Lord Brodie dismissed the petition as incompetent but took the opportunity to...
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