Who Has The Right To Arrange A Funeral?

The recent High Court case of Otitoju v Onwordi [2023] EWHC 2665 (Ch) has highlighted legal disputes regarding a person's right to arrange a loved one's funeral. A deceased's body cannot legally be owned, however, the responsibility for arranging a funeral primarily falls to the executors named in a Will or the administrators if the deceased did not make one.

The case of Otitoju v Onwordi involved two connected claims:

The First Claim

When Peter Adebayo Otitoju passed away his partner, Ms Onwordi, made arrangements for his funeral. The deceased's daughter, Ms Otitoju, sought a Court Order that she was entitled to possession of her father's body and for a limited Grant of Letters of Administration. Ms Otitoju asserted that her father had died intestate.

The Judge granted an injunction restraining Ms Onwordi from taking possession of Mr Otitoju's body and confirmed that Ms Otitoju was entitled to remove her father's body for the purpose of a funeral.

In response, Ms Onwordi applied to set aside the Order. She claimed that he had not been notified of Ms Otitoju's application until after it had been heard. She also produced a Will which she claimed Mr Otitoju had made a few months before his death.

The Second Claim

The Will named Ms Adesyana (Ms Onwordi's daughter) and a Mr Kibindo as executors. Rather than being signed, however, the Will was “signed” by a fingerprint and witnessed by Ms Adesyana and a nurse in the hospital.

On the basis of the Will, Ms Adesanya sought a Court Order for the possession of Mr Otitoju's body, to allow for the purposes of funeral arrangements.

The validity of the Will was key to determining who had the right to possession of Mr Otitoju's body.

Ms Otitoju challenged the validity of the Will, on several grounds, arguing that her father did not have capacity at the time of execution, the fingerprint used was not his, the witness nurse had not been on shift that day, and that there were multiple errors within the Will.

The Court had to consider established legal principles concerning the presumption of a validly executed Will. Firstly, if a Will on the face of it, appears regular and duly executed, even with a fingerprint, then it is valid. Secondly, where a Will is professionally prepared, read over to the testator and duly executed, it is valid. Similarly, there is a presumption of a testator's capacity if a Will is rational and duly executed. However, all of the presumptions above can be rebutted if there is evidence to the contrary. Ms Otitoju submitted limited evidence and notably did not make an application for any witnesses to be cross-examined. The Judge concluded that there could be genuine explanations for all the matters presented, including simple mistakes, therefore there were insufficient grounds to rebut the presumption of a validly executed Will.

The Judge referred to previous cases that highlight the need for a deceased's body to be treated with respect and for disposal to occur without unnecessary delay. A probate challenge to the validity of a Will is a lengthy process, the conclusion of which would take several months. The Judge ruled in favour of the executors and they were given the right to arrange Mr Otitoju's funeral. The Judge made it clear, however, that the decision only regarded who has responsibility for disposing of the deceased's body and that it would not impact any future challenge to the validity of the Will.

A Difficult But Important Distinction

This case highlights the sensitive intersection of legal responsibility and family emotion following a death. It also emphasises the importance of clear, valid estate planning and communication with loved ones to avoid disputes during an already difficult time.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.