People always want to do their best for their loved ones, and included in that, is providing a funeral service that they think their deceased relative or friend would be pleased with.
However, this can cause issues of contention between different family members, particularly if one person wants to arrange a funeral service one way, but someone else wants to arrange it another way.
A recent case, Otitoju v Onwordi [2023] EWHC 2665 (Ch), illustrates this scenario. The deceased's daughter and the deceased’s partner couldn't agree on who should organise the funeral and how the service should take place.
Background
In Otitoju v Onwordi, the deceased was born in Nigeria in 1955, and died in Walthamstow in August 2023. He left behind five children, including the claimant, Otitoju, who received support from her siblings. The deceased was also survived by other relatives, including his mother.
Before his death, the deceased was in a relationship with Onwordi, who was the defendant in the case. At the time of his death the pair were unmarried. Initially, Otitoju made a claim seeking an order to arrange the funeral and take possession of the deceased’s body, believing her father had died without a valid will. Initially, this order was granted.
However, Onwordi contested this, presenting a will allegedly signed by the deceased a month before his death. The will had been signed with a fingerprint instead of a signature and had been witnessed by the Deceased’s stepdaughter (the partner’s daughter) and another person.
The deceased's stepdaughter, Adesanya, filed a related claim against the claimant from the first case. Adesanya, along with another person, were named as executors in the deceased will dated July 15, 2023. Adesanya made a second claim, aiming to cancel the previous order, arguing that the appointed executors should have possession of the body and make the necessary arrangements to organise the funeral.
What does the law say?
The law dictates that while no one possesses the right to a body, there's a duty to handle its disposal properly. Typically, this duty falls upon the personal representatives of the deceased's estate, such as executors appointed in a will.
In cases where there's no valid will, this duty falls upon the estate administrators. However, they can't take possession until probate is granted, unless the court deems probate unnecessary.
The only ways in which an executor’s duty would be overridden, would be to successfully challenge the Will in which the executor is appointed, or for the executor to be removed.
The outcome of Otitoju v Onwordi
The validity of the will was crucial in determining the outcome because if the Will was invalid, it would have been revoked and Adesanya would not have been an executor. Consequently Otitoju, as a child of the Deceased, would have been entitled, as per the rules of intestacy, to apply for probate and take possession of her father’s body.
Otitoju contested the Wills validity, citing a litany of errors, lack of awareness of the will’s existence, and doubts about the deceased's ability to sign the document. Otitoju also questioned her father’s capacity to make a Will and contended that the Will couldn’t have been executed on the day stated because the nurse who witnessed the Will was not in work that day.
However, the Court decided that the Will was valid under the applicable law, in that there is a presumption that a will is executed correctly and the Wills Act 1837 complied with; and, that a fingerprint affixed to a Will is sufficient to meet the requirements of the Wills Act.
Furthermore, the Will was prepared by a solicitor and duly executed, there is a presumption that the Will was the intention of the deceased, and the Court found that there was no reason to question the Deceased’s capacity when making the Will.
As a result, the appointed executors had possession of the deceased body and had the right to arrange the deceased's funeral.
Concluding comments
In instances where a person dies intestate (i.e. without a will), it’s usually easy to determine who has the right to possession of the body of a deceased person – it’s the administrator, which is the person who is entitled to apply for probate.
Equally, where a person dies with a Will, it’s usually easy to determine who has the right – it’s usually the named executor.
That being said, both can be subject to challenge. Where a person appears to die intestate, it could be that a Will is found that changes who has the right to possession. Where a person dies with a Will, it may be the case that the will is challenged on one or many grounds.
What is clear is that the law states who has the right to possession in both circumstances, but to whom that right is afforded, depends on each different situation.
Making any sort of application, whether that be a challenge to a will’s validity or for the Court to clarify who is responsible, you will need the advice and representation of an experienced contentious wills and probate solicitor, who can advise you in the best way possible.
To speak to someone in our Contentious Wills and Probate team, please email info@brethertons.co.uk or phone 01295 270999 (Banbury Office), 01869 252161 (Bicester Office), or 01788 579579 (Rugby Office).