A.B. v C.D. and Another

• Jurisdiction: Ireland
• Judge: Ms. Justice Stack
• Judgment Date: 27 April 2023
• Neutral Citation: [2023] IEHC 211
• Docket Number: 2023 / PO 3861
• Court: High Court

In the Matter of the Estate of X.Y. (A Minor), Deceased and

In the Matter of An Application by A.B. and

In the Matter of Section 27 (4) of the Succession Act, 1965

Between

A.B.

Applicant

and

C.D. and E.F.

Respondents

[2023] IEHC 211

2023 / PO 3861

THE HIGH COURT

PROBATE

JUDGMENT of Ms. Justice Stack delivered the 27 ^th day of April, 2023 .

Introduction

1 . This is an application pursuant to s. 27 (4) of the Succession Act, 1965, which was made to me in the most distressing and heart-breaking circumstances imaginable.

2 . The deceased is a schoolgirl who recently took her own life. She had been in care since she was approximately 18 months old and, while her parents applied to lift the Care Order in 2019, this was refused. Therefore, for most of her life, she was in the care of the Child and Family Agency and she and G. lived in a relative care placement with her aunt and her aunt's husband.

3 . The applicant is one of a number of half-siblings of the deceased, from an earlier relationship of the deceased's mother. The respondents are the parents of the deceased, and of G. G. has also been in care for most of her life and is also in relative placement with her aunt and her aunt's husband.

4 . On the tragic and premature death of the deceased, it transpired that there was a difference of opinion between the respondents and the deceased's remaining family members. The applicant stated that she brought this application on behalf of G., the deceased's aunt and her husband, and the deceased's remaining half-siblings, as well as herself. The wishes of these family members was that the deceased would be buried in the town where she lived for most of her life, so that her friends and community could attend her wake and funeral and so that she could be buried where these family members, particularly G., could visit her grave.

5 . By contrast, the respondents wished for the deceased to be buried in the town where they live, and where the deceased's maternal and paternal grandparents are buried. The deceased's father stressed that the deceased was their child at the end of the day and had taken his name. There is no doubt that the respondents are the deceased's closest blood relations and of course the Care Order ceased as a matter of law on the death of the deceased: Health Service Executive v. McAnaspie [2012] 1 I.R. 548. As a result, the Child and Family Agency took no part in the proceedings other than to communicate the wishes of G. that the deceased would be buried in the town where they had lived for most of their lives.

The applicable law

6 . There appears to be no written decision in a comparable situation since independence, but it appears to have been well established prior to that that an executor has a duty to arrange for burial and is entitled to obtain possession of the body of the deceased for that purpose: Williams v. Williams (1882) 20 Ch. D. 659 at 662. In Dobson v. North Tyneside Health Authority [1997] 1 WLR 596 at 600, Peter Gibson L.J., obiter, quoted with approval the statement in Clerk & Lindsell on Torts, 17 ^th ed, (1995), at para. 13–50. which stated the principle as applying to administrators also.

7 . In Buchanan v. Milton [1999] 2 F.L.R. 844, Hale J. determined a dispute as to who had the right to arrange for the funeral and burial of a deceased by reference to s. 116 of the Supreme Court Act, 1981, which is the equivalent of s. 27 (4) of the 1965 Act. Where the dispute was between persons equally entitled to take out a grant of letters of administration, with consequent doubts as to whether s. 116 applied, the English courts have resorted to their inherent jurisdiction: see Anstey v. Mundle [2016] EWHC 1073 (Ch) where the dispute was between the adult children of the deceased. No such issue arises in this application as the wording of s. 27 (4) is somewhat broader than s. 116 and, in any event, the dispute is between the parents of the deceased and the deceased's half-sibling, and the parents clearly have priority under Order 79.

8 . Hale J. in Buchanan v. Milton (at p. 846) appeared to regard Dobson as stating that an administrator had no right to obtain an injunction for delivery of the body before the grant of letters of administration. However, Dobson was not a case where there had been any application for a grant of letters of administration in order to arrange for a funeral and burial of the deceased. The facts of that case were quite different and the deceased had long since been buried before any such application was made. In any event, the comment in Dobson (at p. 600) was confined to the statement that the right to possession of the body existed for the purposes of interment or other proper disposition of the body. That was by way of explanation that the proceedings in that case did not concern that purpose and Peter Gibson L.J. did not address the position of a person entitled to extract a grant of letters of administration but who had not yet done so.

9 . In Burrows v. H.M. Coroner for Preston [2008] 2 FLR 1225 at para. 13, Cranston J. accepted that a person entitled to take out a grant of letters of administration was in the same position as an executor as regards the funeral and disposal of the body and I think this is the better view. O. 79 will in most cases determine the person or persons entitled to take custody of the body of the deceased and to arrange for the wake, funeral and burial or cremation. Where there is a dispute which has been judicially determined, the person found to be entitled to take out a grant equally has a right to take possession of the deceased's body and arrange for the proper wake, funeral and burial of the deceased. Requiring the person found to be entitled to actually proceed to take out a grant would be impractical and unnecessary. Obviously, in the days immediately after a death, the need to organise the funeral and burial (or cremation) is the priority. In this case, the proceedings were resolved within three working days of the first application for interim relief to restrain the release of the body of the deceased, and within five days of the death of the deceased. But it would be difficult to justify any further delay when there has been a determination of the person with the entitlement and for practical and emotional reasons the funeral should be allowed to proceed.

10 . In any event, as it appears to be well established at common law that it is the legal personal representative who has the duty and entitlement to take possession of the body and arrange for the funeral and burial means, the dispute in this instance fell to be determined in the context of an application pursuant to s. 27 (4) of the 1965 Act, the interim relief being...