In our previous blog, we discussed family members fighting over burial arrangements. What if the burial of the deceased’s body has already been completed? Is there anything one can do? The answer is yes. Under section 25 of the Burial Act 1857, an application can be made to the Secretary of State (Secretary) for a licence to exhume the body. In this case, before making an application to the Secretary (Application), the Claimant made an application to the Court with the hope of using it to support the Application:
Background
In this case, the deceased died in 2020 intestate, and his wife (i.e., the Defendant) was entitled to administer his estate. He was a Muslim from Algeria and an asylum seeker when he entered the country. He gave his name as Omar Djabali and his date of birth as 27 October 1989.
The Defendant arranged to have him buried in England, but the Claimant (i.e., the deceased’s mother) and the deceased’s family wished him to be buried in Algeria. The Claimant applied to the Court to make directions about the exhumation of the deceased’s body. The Claimant claimed that the deceased was born Lamine Ouabri on 27 October 1983.
The issues are:
- Should the Court make a declaration that, because the deceased was not buried under his birth name, he was not buried decently?
- Should the Court make a declaration as to his true identity?
- Should the mother be appointed administrator (to bolster her Application)?
Decision
The Court decided that:
- There would be no declaration as to the decency of the burial – this was something which should be left to the Secretary to determine should it be relevant to the Application;
- There would be a declaration confirming that the deceased was known by more than one name; and
- The deceased’s administrator had a right and duty to make arrangements for the proper disposal of the deceased’s body. The Court had the discretion to appoint some other person if it was necessary/expedient to do so, but:
- (1) there was nothing improper in the deceased being buried in the name he was known by in the UK; and
- (2) Even if the Claimant was appointed as the administrator, she would still have to explain to the Secretary why she was making the application, making the entire process no easier.
Comment
Consistent with the case, the Court emphasised that the most important consideration is that the body be disposed of with all proper respect and decency and, if possible, without further delay. The Court would not easily exercise its discretion under section 11 of the Senior Courts Act 1981.
How we can help?
Ronny Tang is an Associate in our expert Dispute Resolution team, specialising in defamation claims, contentious probate and inheritance claims, Trusts of Land and Appointment of Trustees Act 1996 claims, Equality Act 2010 claims and Protection From Harassment 1997 claims.
If you need any advice concerning the subject discussed in this article, please do not hesitate to contact Ronny or another member of the team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.
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