Anstey v Mundle & anr [2016] EWHC 1073 (Ch)

Analysis

This was a claim brought by Valerie Anstey, one of the three daughters of the late George Carty. Valerie contended that Mr Carty should be buried in England. Her half sister, Sonia Mundle and her cousin, Cynthia Allison argued that he should be buried in Jamaica. Valerie was supported by another half sister, Stephanie Watson.

Owing to the defendants’ failure to undertake not to repatriate the body pending resolution of the dispute, Valerie sought and was granted an urgent interim injunction forbidding the removal of the body from the jurisdiction. Owing to the urgency of the body’s disposal, the court then listed the matter for a one-day hearing to decide to whom letters of administration under s116 of the Senior Courts Act 1981 limited to the disposal of Mr Carty’s body should issue. The matter then came before Jonathan Klein QC sitting as a judge of the Chancery Division.

Valerie’s evidence was that she was her father’s primary carer. Cynthia disputed this and contended that she herself had been. Sonia appeared to have had little contact with her father. Valerie suggested that from 2011 Mr Carty’s health began to fail and that by early 2014 his capacity was in question.

There was a purported will of Mr Carty dated 21 July 2014 under which Valerie and Sonia were appointed his executors. The purported will also contained a direction that Mr Carty was to be buried in Jamaica beside his mother. The validity of the purported will was not agreed. Valerie called into question the existence of a later will as well as suggesting challenges to the purported will on the basis of a lack of capacity, undue influence and a lack of knowledge and approval of its contents.

Cynthia’s evidence was that Mr Carty had told her that he wanted to be buried in Jamaica. A friend of Mr Carty also gave similar evidence. There was some evidence that Mr Carty had said that he did not want to be buried there but this evidence was resiled from in cross-examination. There was some evidence that Mr Carty had not wanted to visit Jamaica during his lifetime.

Valerie argued that taking into account what she said Mr Carty’s wishes to be; the wishes of two of his three daughters, his connection with the UK, where he had lived for many years, the court should make a grant for the purpose of disposing of his body to her so that he could be buried in the UK.

Sonia and Cynthia made the opposite submissions on what Mr Carty’s wishes were and submitted that the wishes of his other family members should prevail. They based their submissions as to his wishes on, inter alia, the contents of the purported will.

Held:

1. 1) The wording of s116 Senior Courts Act 1981 required a grant to be made to some person other than the person who, but for the section, would be entitled to a grant in accordance with the probate rules. In the circumstances, Valerie and Cynthia were entitled to a grant under the probate rules as Mr Carty’s executors if the purported will were invalid, and Valerie and Sonia were similarly entitled to apply as his daughters on his intestacy. In the circumstances, it was not clear that the court had jurisdiction to make a grant as sought.
2. 2) However, it was accepted by the parties that the court had an inherent jurisdiction either as part of its jurisdiction to regulate the administration of estates or otherwise, to decide who should be responsible for the burial of a dead body. See University Hospital Lewisham NHS Trust v Hamuth [2006] EWHC 1609 (Ch) and Hartshorne v Gardner [2008] EWHC 3675 (Ch).
3. 3) Given the uncertainty about the availability of the s116 Senior Courts Act jurisdiction, the court based its decision on the inherent jurisdiction, although would have come to the same decision on either basis.
4. 4) The factors relevant to the exercise of the inherent jurisdiction were (a) the deceased’s wishes; (b) the reasonable requirements and wishes of the family; (c) the location with which the deceased was most closely connected; and (d) that the body be disposed of with respect and decency and if possible, without further delay.
5. 5) Taking into account all the evidence, Mr Carty’s wishes were to be buried in Jamaica. The purported will could be relied on to this extent but without prejudice to any probate claim. The family was equally split as to their own wishes. Given Mr Carty’s relationship with his extended family, the views of his children were not of significantly greater weight than of other family members. However, Valerie had played a more significant role in his life in later years and her views carried more weight than those of other individual family members. On the evidence, Mr Carty was not significantly any more closely connected with England than with Jamaica.
6. 6) That it would be proper for Mr Carty to be buried in Jamaica. The court could not direct that this occur. However, it could direct who should have power and duty to bury Mr Carty. Given the court’s conclusion, that duty would be imposed on Cynthia. Given the potential for practical problems, Valerie would have liberty to apply if it had not been done after a particular date.

7) Costs to be paid by Valerie on the standard basis. This had been hostile litigation of the normal sort and the special rules applicable to probate cases were not analogous.

MR JUSTICE KLEIN: [1] 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 …

Continue reading "Anstey v Mundle & anr [2016] EWHC 1073 (Ch)"