Ibuna & anr v Arroyo & anr [2012] EWHC 428 (Ch)

Analysis

Congressman A was resident in both California and the Philippines. He was domiciled in the Philippines. He died while receiving treatment in the UK. There was a dispute between A’s estranged second wife (Mrs A) and his life partner (Ms I) as to who should take possession of A’s body and make arrangements for burial in the Philippines. Ms I initiated proceedings in England; Mrs A began proceedings in the Philippines. Mrs A intended (as was her right as a wife under Filipino law) to dispose of the body and have a wake at her home (from which A had, prior to his death, been excluded by virtue of orders of the Filipino court) and from which Ms I would have been excluded. Ms I on the other hand intended to have a wake and burial in accordance with A’s wishes in which Mrs A would have been permitted to participate. A had a Californian will, which was valid under Filipino law. It appointed his daughter B (who was the child of his first marriage) as sole executrix. B supported Ms I’s claim to take possession of A’s body. B was the person with the best right to a grant of letters of administration in England. A had put in place a Californian advanced health care directive whereby A indicated his wish for Ms I to direct the disposition of his remains.

Held (granting letters of administration to B and Ms I jointly)

1. 1. There is no right of ownership in a dead body. There is a common law duty to arrange for a body’s proper disposal. That duty falls primarily on the personal representatives, Buchanan v Milton [1999] 2 FLR 844 applied.
2. 2. The Californian will was recognised by the English Court under r30 of the Non-Contentious Probate Rules 1987.
3. 3. It was difficult to see how human rights could be applied in relation to a body as if it had human rights independent of those who survived it to be heard in relation to how it was disposed of, Burrows v HM Coroner for Preston [2008] EWCH 1387 (QB) criticised. The executor in disposing of the body was entitled to have regard to an expression of wishes by the deceased as to how the body should be disposed of. However the executor was not bound so to do. Human rights did not come into the matter.
4. 4. Where no executor was appointed it was possible for s116 of the Senior Courts Act 1981 to be used so that an appropriate person could be appointed to administer the estate, if there were special circumstances.
5. 5. In the circumstances (B’s right to a grant, B’s agreement with Ms I’s proposed course of action and A’s wishes) there were special circumstances within the meaning of s116.
6. 6. Ms I was appointed joint administrator with B to allow her to take possession of A’s body and deal with its disposal.

JUDGMENT PETER SMITH J: Introduction [1] This judgment arises out of a one-day action I heard on 20 February 2012. The action concerns the competing claims as to the right to take possession of the body of Ignacio Arroyo (Congressman Arroyo) to enable it to be buried. Congressman Arroyo was a congressman of the Negros …

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