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Still trying to take care of the dead

18 August 14

Who decides on the burial of the deceased, the widow or the executor? The latest decision in a long running saga

by James Aitken

The long running dispute as to where the body of Private Mark Connolly is to be buried is set to continue.
Connolly died while in Germany in May 2011. His body was shipped back to the UK for burial. The dispute is primarily between his widow, who wants him to be buried in Forfar, and his mother who wants him to be buried in Methil. The deceased’s remains have remained in a mortuary in London all this time.

The most recent decision in this matter is by Sheriff Valerie Johnston of Tayside, Central & Fife at Forfar: SC v LM [2014] ScotSC 19 (25 June 2014). Sheriff Johnston ruled that Connolly should be buried in a place chosen by his widow and not his mother. That, though, is not the end of this matter, as his mother has appealed this decision.

The dispute arose when the mother objected to the funeral arrangements being made by the widow. This is from Sheriff Johnston’s judgment (finding in fact 25):

“On 1 June 2011 the [widow’s] visitation officer advised her that the deceased’s body could not be released to her. On 6 June the JCCC [the Joint Casualty and Compassionate Centre of the Service Personnel and Veterans Agency of the Ministry of Defence] intimated to the [widow] that while the Ministry of Defence usually dealt with the closest living relative (next of kin) over the funeral arrangements, the [mother] was named as executor in the will and her solicitors had indicated that she wanted to have the body released to undertakers of her choice in Fife. The JCCC advised that under the laws of both Scotland and England the executor retained certain legal rights and responsibilities in regard to ensuring the burial or cremation of the deceased and the intention was to release the body to the [mother].”

Before we look at Sheriff Johnston’s judgment in more detail, it is worth reminding ourselves as to the previous decision made in this matter.

History

The previous decision was the subject of an article I wrote for the Journal in February 2012 and can be found here. The widow had sought judicial review of the decision of the JCCC to release the body to the mother. The widow claimed that her husband had originally named her executor in his Army will after their wedding in 2009, but was wrongly told by a senior officer that he could not name the same person as beneficiary and executor.

Although Lord Brodie held the petition to be incompetent, he helpfully continued with his analysis of the matter.

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

This is from para 60 of Lord Brodie’s judgment: “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.”

Following that decision the widow petitioned Inverness Sheriff Court to appoint her as co-executor of the estate, and obtained a last-minute interdict to stop the MoD releasing Connolly's body for burial to his mother. This action was raised in Inverness because that was where the deceased last resided.

Widow's priority

Now to the latest chapter of this dispute.

This is from Sheriff Johnston’s judgment (para 47): “In Scotland the close family make the funeral arrangements. I do not consider that an executor has priority over close family members, and find support for that view in the guidance provided [in further comment by Lord Brodie in para 63 of his judgment]. I would be very surprised if many even thought about an executor at such a time. I am not surprised that the [mother] and her partner initially accepted that the [widow] would decide on these arrangements as her son’s next of kin. In Scotland the close family usually pay for the funeral and recover the costs once an executor has been identified and appointed, if such appointment is necessary. Where there is a surviving spouse he or she will make the arrangements. If there is no surviving spouse it would usually be the surviving adult children or, as with the [widow’s] brother, where there are no adult children the surviving parents or siblings.”

The sentence highlighted immediately above neatly sums what actually happens in the majority of cases.
Sheriff Johnston also clearly comes down on the side of the widow. She further states (para 49): “On the facts in this case I consider that the… widow has priority over the [mother] and other close family members when it comes to making the funeral arrangements. The deceased left his family at a young age to join the Army. He never returned. He married and was living… with his wife. He rarely visited Methil and maintained no close friendships there. He had witnessed at extremely close quarters the obliteration of a fellow serviceman in an explosion and suffered physical injuries in that explosion. He was also left with the sort of mental scars that a person who has not been in a combat situation cannot properly understand. His wife had been at his side throughout his recovery. She had also during that time endured the loss of her brother in tragic circumstances and had the comfort of her husband to assist her in coming to terms with that. In the intimacy of that marital relationship conversation took place about the couple's respective wishes should the unthinkable occur. There is no evidence that her desire to comply with those wishes is motivated by any grudge against the [mother] or her family. I accepted her evidence that she was seeking to ensure that his last wishes were honoured. She gave her evidence in a quiet, dignified manner and with due regard to the delicacy of the subject matter involved.”

It appears that the sentence I have highlighted immediately above was of particular importance to Sheriff Johnston. In her judgment she also stresses the need for executors (on all matters) to properly separate their personal views and feelings from their duties as an executor.

I for one am eagerly awaiting the outcome of the appeal.

James Aitken, Legal Knowledge Scotland
t: 07818 440046
w: www.legalknowledgescotland.com
 

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