University Hospital Lewisham NHS Trust v Hamuth & Ors

MR JUSTICE HART: 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 testamentary capacity. The will was made at a time after the deceased had been admitted on a permanent basis to the Castlebar Nursing Home, 46 Sydenham Hill, London SE26, the deceased having been so admitted on 13^th May 2004, the will being made on 19^th June 2004 and the deceased dying in October 2004. The deceased had first been admitted to Castlebar in October 2003 and, prior to permanent admission, had been in and out of Castlebar from that period. The first defendant was a nurse employed at Castlebar who had responsibility for caring for the deceased.

There is a good deal of evidence in the deceased’s medical notes over the period from August 2002 onwards of the deceased’s deteriorating mental capacity. The notes describe him at various points as being confused, disorientated and with impaired cognition, and in November 2003 concern about his state was sufficient to cause consideration to be given to placing his financial affairs under the Court of Protection. That, however, did not happen. At that time the diagnosis of Alzheimer’s Disease was, I think, for the first time made.

So there is that evidence upon which the family will be relying of lack of capacity.

In addition, it appears that the deceased drew four substantial cheques in favour of the first defendant after his permanent admission to Castlebar: one on 30^th May 2004 for £5,000, one on 6^th June 2004 for £32,000, one on 12^th June 2004 for £128,000 and one on 24^th June 2004 for £35,000. The cheque for £128,000 was returned by the bank as unpaid due to insufficient funds in the account, but the other cheques were paid, and the basis upon which those substantial payments were made to the first defendant is unexplained by the first defendant in the evidence.

Finally, the family has been told by the police that the witnesses to the will have not been able to confirm that they were both present when the deceased signed the will. There is in fact no evidence directly from them before the court, and the first defendant, who has made written submissions to the court but who does not appear before me, has indicated that the attesting witnesses have in fact stated that they were present when the deceased signed.

I give that brief summary of the nature of the dispute about the will in order to emphasise the fact that this is a case in which plainly the circumstances are such that there is a genuine dispute about the validity of the will and, therefore, a genuine dispute about the title of the executor so far as the disposal of the body is concerned, the only issue which is before me today.

The authorities establish that an executor in general has the right to make arrangements for the disposal of a dead body, but also establish that any directions given by the deceased with regard to the disposal of his body are not enforceable as a matter of law. Those propositions are illustrated and established by the decision of Kay J in Williams v Williams 20 ChD 659, in particular at page 664 and 665. The authorities also establish that at common law it is the duty of a householder under whose roof a person has died to make arrangements for the dignified and decent burial of the deceased, at least in circumstances where the deceased is a poor person in relation to whom no other arrangements can be made – see R v Stewart 12 Ad & E 773 at 778.

Accordingly, the claimant submits that it is in the position of a person lawfully in possession of the body and, subject to the claims of others who have the better right to make arrangements for the disposal of the body, it has both the duty and the right to make such arrangements.

The essential question, therefore, is how that duty should be discharged in circumstances where there is a bona fide dispute as to whether the person claiming to be executor has a valid claim to act as such because of a dispute over the validity of the will appointing him to be executor, which dispute, in the nature of things, is highly unlikely to be resolved in the period of time during which arrangements for the disposal of the body will typically have to be made.

There is, so far as appears, no direct authority on the question. Plainly in a case where there is no dispute as to the executor’s entitlement to act, the right of the executor is likely to be accorded a high priority, and it may indeed be, although the point has not been decided, that the executor in circumstances where no dispute at all exists will always be entitled to the final say. That appears to have been the basis upon which Vinelott J decided the case of Re Grandison, reported in The Times for 10^th July 1989, although it is also right to say that Vinelott J in that judgment left open the question of whether the court had the power to override or supplant the executor’s decision at the instance of a near relative and observed that “he would be surprised to find that the court had no power in any circumstances”.

In the present case, the claimant being in lawful possession of the body and there being no way of resolving the dispute as to the entitlement of the first defendant to act as executor within an acceptable time period, it seems to me that the decision as to the appropriate arrangements for the disposal of the body must be left to the claimant as the person currently in lawful possession of the body, and I would accordingly make the declaration which the claimant asks me to make.

I should say that the arrangements which the claimant currently envisages making once the process of the post mortem examination has been completed is, as I understand it, to allow the family to make arrangements for the burial of the deceased in the family plot, and there is no reason to suppose that that is not an entirely appropriate way for the deceased’s body to be given its resting place. I shall accordingly make the declaration which the claimant asks me to make.