Probate

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Administration of estates - Practice - Application

Ibuna and another v Arroyo and another: Chancery Division (Mr Justice Peter Smith): 2 March 2012

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Section 116 of the Senior Courts Act 1981, so far as material, provides: '(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.'

Rule 20 of the Non Contentious Probate Rules 1987, SI 1987/2024, so far as material, provides: 'Where the deceased died on or after 1 January 1926 the person or persons entitled to a grant in respect of a will shall be determined in accordance with the following order of priority, namely (a) the executor (but subject to rule 36(4)(d) below); (b) any residuary legatee or devisee holding in trust for any other person ...'

Rule 30 of the 1987 Rules, so far as material, provides: '(1) Subject to paragraph (3) below, where the deceased died domiciled outside England and Wales, [a district judge or registrar may order that a grant, limited in such way as the district judge or registrar may direct,] do issue to any of the following persons (a) to the person entrusted with the administration of the estate by the court having jurisdiction at the place where the deceased died domiciled; or (b) where there is no person so entrusted, to the person beneficially entitled to the estate by the law of the place where the deceased died domiciled or, if there is more than one person so entitled, to such of them as the [district judge or] registrar may direct…'

The deceased, who was a congressman in the Philippines, was resident in both the Philippines and California but he was domiciled in the Philippines. The first claimant, I, was the partner of the deceased. They had lived together until his death in January 2012. The second claimant, B, was one of the deceased’s daughters from his first marriage. The first defendant, A, was the deceased’s second wife, from whom he had been separated since 2006. Annulment proceedings in respect of the deceased and A were ongoing. The second defendant company were funeral undertakers.

The deceased made a will in California in 2009 (the Californian will), under which B was the executrix. A declaration of trust was also made which provided that, after payment of the last illness and funeral expenses, the trustee was to pay the income to I during her life and on her death the balance was to be distributed between the deceased's children equally. There was no mention of A in the trust document, which was also governed by Californian law. A further document, an advance healthcare directive (the healthcare directive) was executed, which enabled a person to nominate an agent to make healthcare decisions if the deceased was unable to do so. I was appointed as the deceased's first agent.

The healthcare directive provided that 'My agent is authorised to make anatomical gifts, authorise an autopsy and direct disposition of my remain, except as I state here or in Part 3 of this form'. There was no evidence that the deceased wished for his body to be disposed of by his estranged wise. In October 2011, the deceased, accompanied by I, attended the UK for treatment for liver problems. His condition deteriorated and he died on 26 January 2012. I, who had been nominated as next of kin by the deceased, registered his death and obtained a copy of his death certificate.

The body was then sent to the second defendants’ premises. A arrived in the UK to claim the remains of the deceased and to bring them back to the Philippines. She contended that under Philippine law, as the legal wife and next of kin, she had the duty and right to make funeral arrangements. Both B and I wished to bury the deceased in accordance with his wishes. The deceased's wishes were identified by B in a witness statement. An injunction was granted in favour of the claimants restraining the second defendant from disposing of the deceased’s body. The claimants applied for letters of administration to take possession of the deceased’s body to enable it to be transported to the Philippines to be buried in accordance with the wishes expressed by the deceased. The instant matter was the trial of the issue.

Submission: It fell to be determined whether letters of administration should be granted to the claimants. Consideration was given to rule 30 of the Non Contentious Probate Rules 1987 (the 1987 rules), which governed the recognition of the Californian will in the UK, and to rule 20, which gave priority to the executrix of a will. Consideration was further given to section 116 of the Senior Courts Act 1981, which gave the court the power to pass over prior claims to grant of letters of administration.

The court ruled: It was settled law that there was no right of ownership in a dead body. However there was a duty at common law to arrange for its proper disposal, which fell primarily on the personal representatives of the deceased. If there was no executor or administrator, the duty to bury a body fell residually on the local authority where the body was found. On settled law, where there was no executor, the question of the appointment of an administrator arose which concerned the power of the court to pass over prior claims to a grant of administration (see [44], [45] of the judgment).

On the evidence in the instant case, and having considered the deceased's express wishes, it was clear that I was the preferred person from the deceased's point of view to deal with the disposition of his body. B had the prima facie right under rule 30(1)(a) of the 1987 rules. The healthcare directive demonstrated intent by the deceased to clothe I with the power of disposition of his body.

There was no evidence that the deceased wished for his body to be disposed of by his estranged wife. In those circumstances, there were special circumstances enabling the court to exercise its powers under section 116 SCA 1981 and to appoint I a joint administrator with B. That would mean that the executrix under his will and the person recognised by him in the healthcare directive would jointly have the responsibility of taking possession of the body and disposing of it in accordance with the deceased's wishes.

It was clear on the evidence that the Californian will was effective in the Philippines appointing B as executrix and that I, having been directed by the deceased, took priority over A. B was willing to allow I to dispose of the deceased’s body as she wished under the healthcare directive. Those two documents, coupled with the live evidence demonstrated that the deceased’s wishes would be to be buried as the claimants suggested and not as A would suggest. That was where the deceased died domiciled. Both B and I had stated that they wished to bury the deceased in accordance with his wishes. Given all of that there was no justification for not applying rule 20(a), save that it was appropriate for the court to have regard to the healthcare directive (see [39], [52]-[55] of the judgment).

Letters of Administration would be granted jointly to the claimants to take possession of the body for the purpose of its transportation to the Philippines and its disposal in accordance with the deceased's wishes (see [56] of the judgment. Buchanan v Milton [1999] 2 FLR 844 applied.

Philippa Daniels (instructed by TWM Solicitors) for the claimants; Tristan Jones (instructed by DLA Piper) for the second defendant.

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