Injunction to restrain burial – Impact of Covid-19 Pandemic

Articles, News

20/05/2020

Maurice Rifat successfully resists an injunction application to prevent a burial.

In O -v- O & others Mr Justice Fancourt on 12th May 2020 refused to grant an interim injunction to prevent the burial of the parties’ mother in London in order for her body to be taken to Nigeria for burial in accordance with her alleged expressed wishes.

Leaving aside the lack of cogency in the evidence of the deceased’s expressed wish of location for her burial (she had died intestate), it was successfully argued by Maurice Rifat of 1 Chancery Lane, that the Court’s inherent jurisdiction as explained by Vos J in Oldham MBC -v- Makin [2017] EWHC 2543 at [80] or the Court’s powers to make a limited grant of representation pursuant to s.116 Senior Courts Act 1984 for a party to arrange for the disposal of the body (Buchanan v Milton [1999] 2 FLR 844), should not be used in circumstances where a proper and lawful burial had already been arranged and was set to take place the next day.

Mr Justice Fancourt found that for the purpose of an injunction application and applying the American Cynamid principles, there was no serious issue to be tried in circumstances where the proposed burial complied with the overriding factor as identified by Ms Sonia Proudman Q.C. (sitting as a Deputy High Court Judge) in Hartshorne -v- Gardener [2008] 2 FLR 1681, namely that the body should be disposed of with all proper respect and decency without further delay, with the subordinate factors including, (1) the deceased’s wishes (2) the reasonable requirements and wishes of the family who are left to grieve and (3) the location with which the Deceased was most closely connected.  He found that to stop the funeral and burial taking place at this late stage would be the antithesis of the overriding factor.

The judge further found that the balance of convenience was squarely in favour of the Defendants who contended for a London burial, not least because in the current circumstances of the Covid-19 pandemic the Claimant was unable to say when a burial in Nigeria would take place if the body was repatriated, nor was he able to explain how the immediate family would attend a burial or visit the grave in the future.

Maurice Rifat is regularly instructed in contentious probate disputes and recently appeared with Andrew Warnock Q.C. in the Supreme Court in Stoffel v Grondona.

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