Otitoju v Onwordi – Dispute Regarding Funeral Arrangements

In many of our previous blogs (see here and here), we have considered the funeral arrangements of a deceased and whose responsibility it is to decide on the arrangements.

Who is responsible for making funeral arrangements?

The starting position is that the named executor(s) shall be responsible for making the arrangements and in the absence of an executor, the persons eligible to be administrators. The Court is able to deviate from this general rule where there are special circumstances.

It is worth noting that funeral arrangements are typically made before probate has been granted so cases are brought to Court before a personal representative has been formally appointed.

Part of a deceased’s funeral arrangements is to decide whether they should be cremated or buried. The deceased may have indicated his wishes during his life and even recorded those wishes in their Will.

If there is no prior indication it is left to the family and friends of the deceased to decide but ultimately, the personal representative will be responsible for arranging and making any final decisions.

Funeral arrangement disputes

In the event of a dispute, matters can be brought before the Court. However, there is a reluctance of Judges to become involved with such disputes.

Each case will be determined on its specific facts, however, previous decisions highlight that, in the event of a funeral arrangement dispute, a named executor is likely to be the successful party on the basis the deceased felt they were able to administer their estate on their behalf when naming the executor.

The recent case of Otitoju v Onwordi; Adesanya v Otitoju shows the preference of a named executor being responsible and the consideration of special circumstances in order to rebut that presumption.

Otitoju v Onwordi – Case background

In this case, the Deceased’s family initially obtained an injunction against the Deceased’s partner, the Defendant, from obtaining possession of the Deceased in order to proceed with the funeral arrangements. The Defendant applied to set aside that injunction and obtain possession in order to commence the funeral arrangements.

In applying, the Defendant produced a Will of the Deceased naming her and her daughter as executors to the Deceased’s estate. Probate had not been granted and the Claimant sought to challenge the validity of the Deceased’s Will, which, if successful, would remove the Defendant’s position as executor.

On review of the Deceased’s Will and its creation, the Court applied the presumption that a Will is valid if it has been properly executed in accordance with the Will Act. It became the Claimant’s role to rebut that presumption however the evidence provided at the time of the hearing was limited.

The Claimant further submitted this was a case where special circumstances meant the decisions regarding the Deceased’s funeral arrangements should not automatically fall to the named executors. Those circumstances were their challenge to the Will’s validity and the family’s evidence which calls into question the relationship between the Deceased and the Defendant.

In considering the Claim, the Court highlighted the need to dispose of the Deceased with decency and without delay. A decision regarding the funeral arrangements should not be withheld until the challenge to the Will’s validity has concluded. The Court commented that the special circumstances raised were not sufficient and the evidence in support was limited.

The Judge was also aware that whilst the parties wanted different funeral arrangements, the Claimants had not objected to the arrangements proposed by the Defendant. The Court therefore concluded that the Defendant, as named executor, would be responsible for making the funeral arrangements in relation to the Deceased.

Comment

The finding in this case demonstrates the favour of a named executor deciding upon the funeral arrangements. Furthermore, the Defendant’s conduct was cooperative with efforts being made to include the Claimants within the funeral arrangements, an approach we have found to be favoured by the Court given the sensitivity of these cases.