Who has the right to dispose of a deceased's body?

When someone dies who has the right to dispose of their body (and various other issues) will usually fall to the executor(s) as named in the will or, if the deceased did not make a will and died intestate then to the person with the highest priority under Rule 22 of the Non-Contentious Probate Rules 1987 (“the Rules”) to apply for letters of administration.  Unfortunately, the law has not caught up with modern day family living arrangements and so for those people who choose not to enter into marriage or a civil partnership but rather to live together in a loving and committed relationship as cohabitees are not recognised under the Rules.  This was the position before the court in the recent case of Pangou V Nzoulou [2022].

The background factual position

Augel Pangou (“Augel”) had been born in Brazzaville, Congo in 1976.  In 1998 or 1999 he moved to France where he remained living, save for a period of about 9 months in 2007 when he returned to Brazzaville, until about 2008 or 2009 when he moved to the United Kingdom.  He died from sudden adult death syndrome on 3 June 2021 at his home.  He was only 45 years old.  Augel had been living with his partner, Rina Nzoulou (“Rina”) as cohabitees for 13 years and they had two children, aged 10 and 7, with a third child born in November 2021 after his father’s death.  In addition, Augel had three other children with his former spouse, Sylvie, aged 21, 16 and 14.  The eldest of those children, Jennyfer lived in France together with the youngest, although she had lived with Augel and Rina until about 2012/2013.  The 16 year old was also living with Rina.  Rina also had two other children from a former relationship.  Both were adults but had continued to live with Rina and Augel.

Augel died intestate.  Therefore, despite having been Augel’s partner for 13 years and the mother of three of his children, bringing up another of his children for 8 to 9 years prior to his death and continuing to bring up one other of his children, Rina had no automatic right to apply for a grant of letters of administration under the Rules.  Instead, applying the order of priority as set out in the Rules, without a surviving spouse or civil partner, the next category of people who could obtain the letters were his children, in this case as the only adult child of Augel, Jennyfer.  As a result, it was Jennyfer, and not Rina, who had the priority right to dispose of Augel’s body.  Sadly, Jennyfer and Rina did not agree as to how and when Augel’s body should be disposed of and it was therefore necessary for the matter to be decided by the court.

The proceedings

In September 2021 Jennyfer issued proceedings in the High Court under Section 116 of the Senior Courts Act 1981 (“the Act”) seeking an order that (1) she was the person entitled to possession of her father’s body and to make arrangements for its disposal, including the mode and place of burial, and (2) a limited grant of letters of administration for the purpose of disposing of Augel’s body.

Jennyfer’s case was that Augel’s body should be taken to France for burial so that his final resting place was close to that part of his family who lived in France which included (after his death) two of his six children, his mother, Yvette, his two sisters and other extended family members.

Rina opposed the claim and sought an order appointing her as administrator of Augel’s estate.  Rina wished Augel to be buried in England, specifically Kent, his home for the last 13 years of his life and where she and most of his children lived.  Rina contended that this would also be in accordance with Augel’s written wishes, albeit that he had not recorded his wishes in a will.

The law

Section 116 of the Act provides that:

(1)  If by reason of any special circumstances it appears to the High Court to be necessary or expedient to appoint as administrator some person other than the person who, but for this section, would in accordance with probate rules have been entitled to the grant, the court may in its discretion appoint as administrator such person as it thinks expedient.

(2)  Any grant of administration under this section may be limited in any way the court thinks fit.

In order to engage the power under Section 116 the court must be satisfied, firstly, that there are special circumstances which may displace the order of priority under the Rules and secondly, that it is necessary or expedient to displace the normal order of priority.

There is no property in a deceased’s body and so the deceased cannot bind his personal representatives as to how to dispose of his body but the deceased’s wishes are important and should be taken into account.  In cases where this is a dispute, usually the court only needs to decide to whom the body should be released to but in suitable cases it does have inherent jurisdiction to give directions as to how the body should be disposed of.

Matters to be considered

The court considered the special circumstances as submitted by Rina’s counsel in order to conclude whether it was necessary or expedient for an order to be made under Section 116, it being accepted that if Rina did not satisfy the court that Section 116 had been engaged, then Jennyfer was the person entitled to letters of administration and thus, the person with authority to dispose of Augel’s body.

The factors that the court had particular regard to were the factual background, Augel’s expressed wishes, the wishes of his family and friends and the place with which he had the closest connection and burial arrangements.

Having regard to these issues, the court found that although Augel was close to his mother, ringing her regularly at weekends he had only visited France about 6 times since moving to the United Kingdom with Yvette visiting England about three times.  Save for one of Augel’s sisters, Stella visiting in 2009 his family in France did not come to England to see him.  Jennyfer had visited him only twice.

On the other hand, Augel had a full life in England with Rina and their blended family.  He worked hard five days a week as a courier, had a wide circle of friends and played basketball regularly.  Whilst the court had no doubt that he loved his family in France his focus and commitment were to his immediate family in England.

The court also had before it a copy of Augel’s journal in which he had written (as translated) “on my death I would like to be buried in my country of permanent residence”.

Despite Jennyfer’s allegations that the journal was a forgery and her evidence that Augel had confided in Yvette that he wished to be buried in the same vault as his mother, the court rejected Jennyfer’s evidence.  It found that the plot or vault appeared to have been purchased after Augel’s death.  In addition, the court had evidence before it from Mr Brand, a handwriting expert, that, having examined Augel’s journal it was “highly probable that the questioned handwriting, including the signature was written by Mr Augel Pangou.”.

The court went on to hold that whilst Congo was Augel’s heritage and the part of his adult life spent in France and the part of his family who remained living there were part of who Augel was, the closest connection he had was to the United Kingdom.  He had chosen to make his permanent home in the United Kingdom.

Judgment

In all the circumstances, the court was satisfied that there were special circumstances to engage Section 116 and that it was both necessary and expedient for the court to appoint Rina as administrator of Augel’s estate.  Accordingly, the court made a limited grant to Rina so that Augel’s body could be released to her and arrangements made for the prompt disposal of his body.  The court also directed that Rina should give as much notice as possible as to when and where the funeral was taking place to Jennyfer and Yvette.

Conclusion

This case is a useful reminder that the law does provide a mechanism whereby, if necessary the order of priority as set out in the Rules can be dis-applied to allow someone other than the person with the highest priority to be appointed as administrator, although it is hoped that the law will eventually be modernised so as to avoid cohabitees (and other applicants) from having to endure the additional emotional trauma of court proceedings, not to mention the additional costs, at a time when they are grieving the loss of a loved one.​​​​​​