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The battle over veteran’s final resting place will not win the war

Every once in a while, an unusual dispute over burial rights arises in the UK courts.

The death of 97-year-old War Veteran Paul Lewis Morigi almost resulted in a High Court battle between his English and American families, to determine whether Mr Morigi should be buried in the UK close to his ‘first and last love’ or with full military honours in the family plot in Connecticut, US.

Mr Morigi was formerly married to the mother of his two children, American Muriel Morigi for 60 years. However at the age of 92, he divorced Muriel and moved to Sussex to be with Olive Murphy, who he had previously been married to during the War.

Following Mr Morigi’s death in late 2016, his American daughter, Karolyn successfully obtained an injunction preventing the executors of the deceased’s estate burying Mr Morigi, in a plot chosen by Ms Murphy in the UK. Karolyn would like to see her father’s body returned to the US and buried in their family plot. Nearly one year later, having been kept in storage at the undertakers, the High Court was set to determine where Mr Morigi should finally be laid to rest until Ms Murphy agreed to drop her bid, with the two families agreeing to an out-of-court settlement.

The law in England is clear – there is no legal property in a corpse and possession of a body only extends to a duty to arrange the burial. The right to possess the body to arrange the burial, lies with the executor in the first instance. If the deceased dies intestate, there is a strict order of priority, starting with spouse, followed by any children and then parents and siblings. However, the court can interfere with this and order alternative arrangements.

This case highlights the complexity of the law and how vulnerable it is to disputes. The executors of Mr Morigi’s estate had a legal right to proceed with arranging the funeral arrangements, and should ultimately have the final say; however, the court was willing to grant Mr Morigi’s daughter and grandchildren an injunction preventing the burial going ahead.

When disputes over burials arise in the UK, the court give weight to the following key factors:

  1. The deceased’s wishes;
  2. The wishes of family and friends;
  3. The place the deceased was most closely connected with;
  4. The practicalities of arranging the funeral.

A complicating factor in a situation such as Mr Morigi’s, is where his own wishes are not clear cut. Mr Morigi’s American family gave evidence at the trial that he purchased the plot in Greenwich, Connecticut and intended his entire family to be buried there. Indeed this is where his son was buried in 2009. However, the executors wanted to bury him in a plot picked by Ms Murphy. A further difficulty is determining the place Mr Morigi was most closely connected with – in England where Ms Murphy says he spent the “happiest years of his life”, or in the US where he spent the majority of his life and the place he raised his family?

Ashes present a further layer of complexity as summarised well in the case of Leeburn v Berndorfer: “An important difference between cremation and other methods of disposition is that, after cremation, there remain the ashes.” Regulation 15 of the Cremation (England and Wales) Regulations 2008, governing the law of ashes, allows an application for cremation to be made by either the executor or crucially; a near relative who is aged over 16. Under Regulation 30, the cremation authority must give the ashes to the application following the cremation.

The difficulty with the regulations is that they allow for a wide range of applications, there is no order of priority to make the application and there is no framework for dealing with disputes.

In order to avoid potential litigation, funeral directors and cremation authorities might consider incorporating a code of practice into their contractual terms, including setting out how it is advisable that the section 15 ‘applicant’ is the executor or a person entitled to a grant of Letters of Administration. Until this happens, it is advisable to seek legal advice in the event of a dispute.

The death of any family member or spouse is devastating enough without the added stress of a court case over the deceased’s burial or remains. It is vital to regularly update your will, particularly after a life changing event such as a divorce, to make sure your wishes are clear to family members and to a court of law if necessary.

The parties in this case were able to compromise out of court, with Ms Murphy agreeing to Mr Morigi’s body being flown back to the US and buried with his son. The fact that the parties were able to reach settlement, even at the very final stage of proceedings, highlights that disputes of this nature can and should be resolved outside of a court room if possible.

The vast majority of will, trust and estate disputes are settled out of court; often before court proceedings have even been issued. Mediation in particular, is the method of choice. By engaging in mediation, the parties retain control of their dispute and reach resolution in a far more cost and time effective manner. With the assistance of a neutral, skilled mediator, parties have the freedom to reach their own imaginative and unique settlement agreements.

Published: 22 November 2017

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November 2017

Key Contact

Gavin Faber