University Hospital Lewisham NHS Trust v Hamuth & others
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE HART |
| Judgment Date | 23 January 2006 |
| Neutral Citation | [2006] EWHC 1609 (Ch) |
| Court | Chancery Division |
| Docket Number | 1HC 519/05 |
| Date | 23 January 2006 |
[2006] EWHC 1609 (Ch)
Mr Justice Hart
1HC 519/05
THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand
London WC2A 2LL
MISS A CLARKE (instructed by Radcliffes Le Brasseur) appeared on behalf of the Claimant.
MR D HOCHBERG (instructed by Beachcroft Wansboroughs) appeared on behalf of the 2 nd to 13 th Defendants.
APPROVED JUDGMENT
By this claim the claimant, Lewisham Hospital NHS Trust, as a result of an amendment made pursuant to an order of Mr Ellery QC sitting as a Deputy High Court Judge, seeks a declaration:
"That, as a person in lawful possession of the dead body of Alan Roberts, the deceased, who died at Lewisham Hospital on October 4 th 2004, it may make arrangements for the post mortem examination and disposal of the deceased's body notwithstanding the objection and claim of the first defendant, who is the executor appointed by an alleged will of the deceased, which is the subject of a caveat and a threatened contentious probate action at the suit of the deceased's family, the second and third defendants."
Since that claim was issued additional defendants have been added. There are now defendants 2 to 13, who are either first or second cousins of the deceased. The first defendant, Mr Abdul Sada Hamuth, is, as the claim form indicates, executor under an alleged will of the deceased. That will is dated 19 th June 2004 and under it, apart from small pecuniary legacies, Mr Hamuth is appointed executor and is also made the deceased's sole residuary beneficiary. The will indicates, under the heading "funeral wishes": "I wish my body to be cremated."
The body has since the death been kept in the mortuary of the claimant. That situation arose as a result, in the first place, of an embargo by the police on the release of the body, which was not lifted until September 2005. Since that time it has become urgent for the claimant to know what it may or may not do with the body because of the pressure on space in the claimant's mortuary.
The first defendant has indicated, by his solicitors in correspondence, that he wishes the body to be released to him so that he can arrange for its cremation. The other defendants, however, the next of kin of the deceased, wish the body to be released to them so that it may be buried in the family plot at Heather Green Cemetery.
The claimant wishes the court's direction accordingly.
As the claim form indicates, relief is also sought in relation to the claimant's ability to make arrangements for a post mortem examination. In fact, in the events which have happened, that post mortem examination has now taken place at the request of the next of kin and with the agreement and cooperation of the claimant. That took place on 20 th December. As a result, the present state of affairs is that the body itself has been returned to the claimant, but the brain is still elsewhere, being subjected to the examination. At some point the brain will be reunited with the body, but I am not concerned with that process. The critical issue so far as this court is concerned is how it should direct the claimant so far as the rival claims of the family and the first defendant are concerned.
It is appropriate at this stage to give an indication of the background to the dispute which has arisen. In essence, the family's contention is that the will will be the subject of challenge and, shortly, the grounds upon which the family will be challenging the will are lack of due execution, want of knowledge and approval, and lack of...
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Takamore v Clarke SC
...79 I would follow the approach taken in Jones v Dodd. It is consistent with the views expressed by Hart J in University Hospital Lewisham NHS Trust v Hamuth that, although the executor “in general” has the right to make arrangements for the disposal”, 132 where there is dispute his is one o......
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Takamore v Clarke COA CA
...104 DLR (4th) 384; Buchanan v Milton [1999] 2 FLR 844 (Fam). 185 Grandison v Nembhard (1989) 4 BMLR 140 (Ch) at 143; University Hospital Lewisham NHS Trust v Hamuth [2006] EWHC 1609 (Ch) at 186 Rosalind Croucher “Disposing of the Dead: Objectivity, Subjectivity and Identity” in Ian Frecke......
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Gloucestershire County Council v Re K
...possession of the body. 14 Mr Sharp draws together a number of authorities which cast light on the correct approach. In University Hospital Lewisham NHS Trust v Hamuth [2006] EWHC 1609 the claimant hospital being 'the person currently in lawful possession of the body' was held (on its appli......
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Oldham Metropolitan Borough Council and Another v Robin Makin and Others
...as to which of competing sets of relatives should have the right to dispose of the body (see Buchanan v. Miltonsupra, University Hospital Lewisham NHS Trust v. Hamuth [2006] EWHC 1609 (Ch) (Hart J), and Hartshorne v. Gardner [2008] EWHC 3675 (Ch) (Ms Sonia Proudman QC)). But in none of thos......
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Burial Disputes
...to seek the direction and sanction of the court before taking any steps. The case of Lewisham Hospital NHS Trust v Hamuth and Others [2006] EWHC 1609 (Ch) best illustrates this point. In that case, the deceased died in hospital. In his last purported will the deceased expressed a wish to be......
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Table of Cases
...(1979) 123 SJ 327, CA 214 Leeburn v Derndorfer [2004] WTLR 867, SC Vic (Aus) 140, 142 Lewisham Hospital NHS Trust v Hamuth & Others [2006] EWHC 1609 (Ch), [2007] WTLR 309, 150 Sol Jo LB 168, [2006] All ER (D) 145 (Jan) 141 Lilleyman v Lilleyman [2012] EWHC 821 (Ch), [2013] Ch 225, [2012] 3 ......