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Taking care of the dead

20 February 12

The Ministry of Defence found itself in a difficult position when a deceased soldier’s executor mother, and his wife, both claimed custody of his body. Where does the law stand?

by James Aitken

C, Petitioner [2011] CSOH 124 (3 August 2011) concerns a family dispute over where the body of Private Mark Connolly (MC) will be buried. MC’s mother wishes to have him buried in Methil. His widow wishes him to be buried in Forfar.

The petitioner in this matter, SC, the widow of MC, sought judicial review of a decision of the Service Personnel and Veterans Agency of the Ministry of Defence. MC died on 14 May 2011 whilst on a training course in Germany. MC named his mother and brother as his executors in his will. MC’s widow is the sole beneficiary.

It appears that the MOD initially wished to release MC’s body to MC’s widow. It was only when MC’s mother disputed the funeral arrangements, and after looking at MC’s will, that the Ministry of Defence (MOD) indicated that they would now release the body to MC’s mother. At that point the Forfar funeral arrangements were almost complete.

MC’s widow maintained that although MC did not leave written instructions regarding his funeral he made his wishes known to her. MC told her that he wished to be buried but not in Methil. He wished to be buried wherever he and his wife were settled. They had settled in Forfar.

The MOD indicated its change of mind in a letter to MC’s widow dated 6 June 2011. It is in respect of this letter that MC’s widow sought judicial review.

Decision to review?

Lord Brodie began by looking at the issue of competency.  

“Critically," he said at para 26, "nothing in the letter of 6 June 2011 affects the rights or interests of anyone and indeed it does not purport to do so. It neither constitutes nor expresses a decision. All that there is in the letter is a statement of intention to transfer custody of the body to the other party that the writer of the letter understands is entitled to its custody as a matter of law. Whether or not that understanding is correct, neither the writing of the letter nor the implement of the intention expressed in any way alters parties’ respective rights or interests. Were it to be the case that the petitioner is entitled as a matter of law to demand custody of the body, neither the letter nor a transfer to the second respondent in implement of the intention expressed in the letter would affect that. Put shortly, in my opinion there is nothing here to judicially review. I recognise that in similar circumstances in England the courts may take an approach to applications for judicial review which is more pragmatic and closer to what parties would have wished me to do here..., but the nature of the equivalent English jurisdiction is different from that in Scotland.”

Although Lord Brodie decided to dismiss the petition as incompetent, he addressed the petitioner’s claim that the MOD's decision contravened her rights under article 8 of the European Convention of Human Rights. Indeed Lord Brodie went as far as to say that: “I may be wrong on my conclusion as to competency.”

Article 8 claim

Article 8 of the Convention provides:

"1. Everyone has the right to respect for his private and family life, his home and his correspondence.

"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

MC’s widow argued that her article 8.1 rights were engaged because the decision of which she complained deprived her of the opportunity of taking custody of her husband’s body, arranging his funeral and determining where he was interred.

Lord Brodie split his analysis into three parts: (1) whether there had been interference with the petitioner’s rights under article 8.1; (2) whether any interference was according to law; and (3) whether such interference was justified by any of the other provisions of article 8.2.

Interference 

On the question of whether there had been interference, Lord Brodie proceeded upon the basis that the transfer of the deceased’s body to another person would amount to an interference with MC's widow's article 8.1 right to respect for family life.

According to law 

Lord Brodie then discussed what he thought was the position under both English and Scots law.

Under English law the executor has priority when it comes to funeral arrangements, but this right may be restricted by the courts. Lord Brodie noted that there is no direct authority on this point under Scots law.

The case of Evans v McIntyre (Aberdeen Sheriff Court, 28 March 1980, reported in Paisley and Cusine, Unreported Property Cases) was discussed, though, and Lord Brodie noted some of Sheriff Scott’s comments in that case, observing: “On the basis of the authorities to which I was referred and the submissions I heard, I would see that there is no question but that a confirmed executor or someone who is entitled to be confirmed as an executor and who intends to seek confirmation (the prospective executor) is a lawful custodier of the body of a deceased for the purpose of burial” (para 56).

Lord Brodie, however, did not feel “that matters are as cut and dried” as Evans would suggest and noted: “The fact that he [the executor] pays does not make him responsible for arranging the funeral. It is the surviving spouse and next of kin (not the executor) who have rights to solatium for unauthorised interference with the dead body" (para 57).

“Thus, in Scots law, I would see near relatives as well as the executor or prospective executor as having rights and interests in respect of the body of the deceased. The nature of these interests is not the same” (para 60).

“Determining what are appropriate funeral arrangements by reference to the quality of relationships within a family appears to me a task for which the court is quite unsuited” (para 67).

The “intends to seek confirmation” comment from the Evans case (see above) is also important as, interestingly, Lord Brodie was not certain that MC’s mother would be appointed as executor due to her answer to his question on her being confirmed as executor. MC’s mother said she would take legal advice before deciding.

Other provisions of article 8.2

“To respect the rights of both, the [MOD] cannot avoid favouring one.” Lord Brodie felt that the MOD was in an impossible position and that its actions were justified under article 8.2.

In summing up Lord Brodie said: “The first respondent [the MOD] may therefore lawfully transfer the body of the deceased to the second respondent [MC’s mother], but [it] may also lawfully transfer the body to the petitioner [MC’s widow]. Nothing in this opinion should be construed as an expression of preference on my part of the position of the second respondent [MC’s mother] over that of the petitioner [MC’s widow].”

Final comments 

Although Lord Brodie held the petition to be incompetent, he helpfully continued with his analysis of the matter. Lord Brodie saw that the MOD was in an almost impossible position. Whatever it did, the other party would feel aggrieved.  

One final point. I was surprised that more was not made of the fact that MC did not appoint his widow as an executor because of erroneous advice from the army. The army, it was claimed, had told MC that it was not appropriate to appoint the same person as executor and beneficiary.

Although this purported to end the matter, a further action was raised at Inverness Sheriff Court late last year. As at the date of writing, the outcome of this action is not yet known and MC has still not been buried.

James Aitken, Legal Knowledge Scotland
t: 0781 844 0046
w: www.legalknowledgescotland.com

 

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