Otitoju v Onwordi [2024] WTLR 655

Analysis

Two applications had been made concerning the funeral arrangements of the deceased. In the first application, the claimant (one of the deceased’s children who had the support of her siblings and her mother) applied for an order that she be entitled to possession of the deceased’s body and to make arrangements for its disposal, and for a limited grant of letters of administration (on the basis that the deceased died intestate) under the Senior Courts Act 1981 and an interim injunction restraining the defendant (the deceased’s former partner) from taking possession of the deceased’s body and making arrangements for disposal. The certificate of service stated the application was served at 8pm the day before the hearing.

The court made an order in the absence of the defendant restraining her from taking possession of the body, ordering that the claimant was entitled to remove the body for funeral purposes and ordering the defendant to pay the costs of the claim, though not of the application itself. The order allowed the defendant to apply to vary or discharge it.

The defendant made an application to set aside the order. The defendant said she had not been notified of the hearing and only became aware following service of the order. She said that she had lived with the deceased for 18 years and the deceased had a will naming her daughter and another person as executors.

The second application was made by the defendant’s daughter seeking an order that the claimant in the first application be prevented from taking possession of the body, and declaring that the executors were entitled to possession for the purposes of the funeral. On the same day, she issued an application for an interim injunction. The court ordered that neither party should take possession of the body of the deceased until after:

1. (i) the determination of the application to set aside the order made in the first application; or
2. (ii) further order of the court.

The evidence before the court was that the will would be challenged on the basis of not being signed, lack of capacity and lack of knowledge and approval. There had been no order for cross-examination.

Held, declaring that the executors were entitled to take possession of the body and to arrange the funeral:

1. (1) The will was regular on its face and appeared to have been executed in accordance with s9 Wills Act 1837 so the presumption of formal validity applied, and there was insufficient evidence to rebut the presumption.
2. (2) The will was rational on its face such that the presumption of capacity applied, and there was insufficient evidence to show a lack of capacity. The will had been professionally drafted by solicitors, and there was sufficient evidence of knowledge and approval.
3. (3) The person who should have charge of making the funeral arrangements was the person appointed under the will, and there were no special circumstances justifying overriding the position of the executors under s116 Senior Courts Act 1981.

JUDGMENT HHJ PAUL MATTHEWS: [1] This is my judgment on applications made in two linked claims concerning a very sad dispute about the funeral arrangements to be made for the late Peter Adebayo Otitoju, who was born on 8 January 1955 in Nigeria, but died in Walthamstow, London, on 8 August 2023. The claimant in …

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