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Articles | Mon 26th Oct, 2020
Judgment was handed down in the case of Ganoun v Joshi [2020] EWHC 2743 (Ch) last Wednesday. Here John Bryant, who appeared for the first respondent, provides an overview of the case.
The case concerned the conflicting wishes of the deceased’s relations regarding arrangements for his burial. By the time of the substantive hearing his widow had already caused him to be buried but not in the name he had been given at birth. The court decided that there were no special circumstances rendering it necessary or expedient to appoint his mother as administrator instead of his widow. The court refused to make a declaration as to the decency of his burial but acceded to a request that it declare his original name and date of birth. The judgment contains a discussion of the jurisdiction to make declarations and observations on the interpretation of section 116 of the Senior Courts Act 1981.
What are the practical implications of this case?
The decision provides guidance in cases where there is disagreement as to who is to have charge of funeral arrangements and how a body is to be disposed of. It is a useful example of how the court approaches the exercise of its inherent jurisdiction in relation to the administration of estates particularly to make declarations. Will a declaration serve a useful purpose? In the context of funeral arrangements the judgment contains a helpful discussion of the principles on which the court exercises its discretion under section 116 of the Senior Courts Act 1981 to appoint a person to administer the deceased’s estate other than the person entitled under the Probate Rules. It emphasises that the most important consideration is that the body be disposed of with all proper respect and decency and, if possible, without further delay. A lesson to be drawn is that a party seeking to be appointed administrator in such circumstances should act promptly.
What was the background?
This was a dispute between the deceased’s widow and his mother. About 15 years ago the deceased, a Muslim, entered this country from Algeria as an asylum seeker. He gave his name as Omar Djabali and his date of birth as 27th October 1989. His parents and siblings, who still live in Algeria, said that in fact he was born Lamine Ouabri on 27th October 1983. He remained in the UK and married Ms Joshi. He was always known to the U.K. authorities as Omar Djabali.
The deceased died on 15th September 2020. He was intestate and under the probate rules his widow was entitled to administer his estate. She arranged to have him buried in this country. His family in Algeria wished him to be buried there. By notice dated 30th September his mother applied to the court to be appointed administrator or alternatively for the court to make directions about the disposal of his body. She was too late. The deceased was buried according to Muslim rites on the morning of 30th September.
His mother now intended to apply to the MoJ for an exhumation licence so that she could repatriate his body and sought relief to support such an application.
The issues were these:
1. Should the court make a declaration that because the deceased was not buried under his birth name he was not buried “decently”?
2. Should the court make a declaration as to his true identity?
3. Should the mother be appointed administrator?
What did the Court decide?
Issue 1
With declarations the court takes into account justice to the claimant, justice to the defendant, whether the declaration would serve a useful purpose and whether there are any other special reasons why or why not a declaration should be made: Financial Services Authority v Rourke (t/a JE Rourke and Co) [2001] EWHC 704 (Ch)).
There would be no declaration as to the “decency” of the burial. Its only purpose would be to strengthen an application for exhumation. The court should not pre-empt or influence the Secretary of State’s decision.
Issue 2
There would be a declaration confirming that the deceased was known by more than one name. There was a purpose in making it. It would assist his family in Algeria in obtaining a visa to visit his grave.
Issue 3
The normal rule is that the deceased’s executor or administrator has both a right and a duty to make arrangements for the proper disposal of the deceased’s body (Buchanan v Milton [1999] 2 FLR 844 [at 845-846]). Under the probate rules that person was his widow.
Under section 116 of the Senior Courts Act 1981 the court has a discretion to appoint some other person if, by reason of any special circumstances, it is necessary or expedient to do so. Previous decisions had broken down the test into two stages but that approach was hard to justify. It was a single process.
The most important consideration was that the body be disposed of with all proper respect and decency: Hartshorne v Gardner [2008] EWHC 3675 (Ch) [at 9].
There was nothing improper in the deceased being buried in the name he was known by in the U.K. Neither his burial under that name nor Ms Joshi’s conduct in the face of family objections constituted “special circumstances” under section 116.
Case details
• Court: Business List (Chancery Division), Business and Property Courts of England and Wales, High Court of Justice
• Judge: Robin Vos (sitting as a judge of the Chancery Division)
• Date of judgment: 21 October 2020
