Resting place: Ibuna v Arroyo

It is unfortunate but not uncommon for disputes to arise between family members in relation to the property of a deceased relative. What is far less common is a dispute in relation to the mortal remains of the deceased himself.

Such a dispute arose in Ibuna v Arroyo [2012] EWHC 428 (Ch), in which Peter Smith J granted letters of administration to the partner and daughter of a Filipino congressman who had died in the United Kingdom, thus enabling them to take possession of his body to transport it to the Philippines and dispose of it in accordance with his wishes, despite the contrary wishes of the congressman’s estranged wife.

In the course of his judgment, Peter Smith J cast doubt upon an earlier decision in which it had been suggested that there should be a post-mortem application of human rights in relation ?to the body itself when deciding a dispute as to who should be responsible for its disposition.

Street fight

Congressman Arroyo was resident in both the Philippines and California. He was domiciled in the Philippines. He had been seriously ill and in October 2011, accompanied by his partner, Ms Ibuna, he came to England for treatment. He died at the London Clinic in January 2012.

It was Ms Ibuna’s unchallenged evidence that she had first met the deceased in 2002, had started a relationship with him in 2006 and had lived together with him thereafter until his death.

After the congressman died, Ms Ibuna registered his death and obtained a copy of the death certificate. She was able to do this because he had nominated her as his next of kin at the clinic, describing her as his partner. She subsequently began to make plans to repatriate the body to the Philippines.

Her intention, in which she was supported by the congressman’s daughters by his first marriage, was to allow the body to lie in state in Congress. It would then be taken to ?14 Badjao Street in Quezon City for ?the wake before a funeral and burial in the family mausoleum.

As the judge described it, 14 Badjao Street was the ‘ancestral family home’. There was evidence from the congressman’s daughter, Bernardina, ?that he had told her on several occasions that he wished his wake to be held at ?14 Badjao Street.

Before repatriation could take place, the congressman’s second wife, Mrs Arroyo, arrived in the UK and declared that she was going to take possession ?of the body and return with it to ?the Philippines.

The congressman and Mrs Arroyo had been separated since 2005. They had been estranged since 2006, when the congressman had brought annulment proceedings against her in ?the Philippines.

As a matter of Filipino law, these proceedings came to an end with the congressman’s death and, accordingly, Mrs Arroyo was his lawful widow. Her intention was to hold the wake at her home at 17 Badjao Street.

As the judge noted, this was ‘somewhat surprising’ because she had obtained exclusion orders in the congressman’s lifetime preventing ?him from entering that property. It was also thought that she would exclude Ms Ibuna from the wake (whereas Ms Ibuna was quite willing for Mrs Arroyo to attend).

Rather than participate in the proceedings issued against her in England by Ms Ibuna and Bernardina, Mrs Arroyo issued proceedings in the Filipino courts. No judgment had been given in the Philippines at the time of the judgment in England.

The congressman had made a will in California appointing Bernardina as sole executrix. The will left his residuary estate to a Californian ‘living trust’ that had been created on the same day as the will had been executed.

The trust was in favour of Ms Ibuna for life and subject thereto for the congressman’s three children in equal shares. No mention was made of Mrs Arroyo in the will or trust. The judge accepted the expert evidence on Filipino law that the will would be recognised in the Philippines.

The congressman had also executed an advance healthcare directive under Californian law, under which he appointed Ms Ibuna his agent for the purposes of making healthcare decisions and authorised her to “direct disposition of my remains”.

Extraordinary events

It was held by Peter Smith J:

1. Regardless of the legal effect of the healthcare directive, it demonstrated that the congressman intended Ms Ibuna to have the power of disposition of his body. He had also indicated his wishes to Bernardina and both Ms Ibuna and Bernardina wished to carry out those wishes. ? There was no evidence that he intended Mrs Arroyo to dispose of his body. Indeed, in view of the annulment proceedings and the restraining order she had obtained against him, it would have been ‘quite extraordinary’ that he would want her to have any role in his funeral.

2. Given that the body was in England, it was necessary to consider the problem from the perspective of English law. The established law was correctly summarised by Hale J in Buchanan v Milton [1999] 2 FLR 844. The executor has the primary duty to dispose of the body. Where there ?is no executor, the duty falls upon the administrators of the estate but they might not be able to obtain ?an injunction for delivery of the body before the grant of letters ?of administration. ? However, in Burrows v HM Coroner for Preston [2008] EWHC 1387 (QB), Cranston J had held that article 8 (right to family life) and article 9 (freedom of religion) of the European Convention on Human Rights could be relevant. ? Therefore, he had concluded that where there was a dispute as to the manner in which a body was to be disposed, the deceased’s views as to the disposal of his body must be taken into account as a ‘special circumstance’ in terms of section 116 of the Senior Courts Act 1981 (which gives the court jurisdiction to pass over the person prima facie entitled to a grant where it is necessary or expedient to do so). ? Peter Smith J doubted that this human-rights analysis was correct: he had “some difficulty in a post-mortem application of human rights in relation to a body as if it has some independent right to be heard which [was] in effect what Cranston J [was] saying”. He concluded, therefore, that the law was as set out by Hale J in Buchanan and that, in disposing of a body, the executor or administrator is entitled to have regard to the deceased’s wishes but is not obliged to do so.

3. Given that the congressman had died domiciled outside of England and Wales, the relevant provision of the Non-Contentious Probate Rules 1987 relating to the entitlement to take out a grant of representation in England and Wales was rule 30. This provision gives a prima facie right to the person entrusted with the administration of the estate by the court having jurisdiction at the place where the deceased died domiciled.? It also gives the registrar the power to issue a grant to another person if, in his opinion, the circumstances so require. Given that the congressman had been domiciled in the Philippines and given that the Californian will would be recognised in the Philippines, the person with a prima facie right to a grant was Bernardina, being the executrix appointed by the will. ? There was no justification ?for not allowing a grant to issue ?to Bernardina, save in one respect. ?It was appropriate, in the judge’s view, for the court to have regard ?to the healthcare directive, from which it was clear that the congressman considered Ms Ibuna, rather than Bernardina, to be the person to deal with the disposition of his body. Bernardina accepted and was willing for Ms Ibuna to make the necessary arrangements.? In those circumstances, the judge held that there were special circumstances within the meaning of section 116 of the 1981 Act to justify the appointment of Bernardina and Ms Ibuna as joint administrators. Such an appointment would mean that both the executrix named in the will and the agent appointed by the healthcare directive would have joint responsibility for taking possession of the body and disposing of it in the manner proposed.

Clear rejection

The decision of Peter Smith J amounts to a clear rejection of the relevance of a deceased person’s human rights when determining who should act as personal representative in the context of a dispute over the disposal of the body.

It also contains a clear statement ?of the established law that it is the personal representative who has the power to take possession and dispose ?of the body and that, in doing so, ?the personal representative need not follow the wishes of the deceased or ?any other person.

In the congressman’s case, the merits clearly favoured Ms Ibuna and Bernardina, whose position was consistent with his wishes. But, in a different case, one wonders whether the court might be more inclined to take account of the deceased’s wishes (as special circumstances for the purposes of section 116 rather than as a vindication of the deceased’s human rights) in order to pass over the named executor (or other person with first priority to a grant) in favour of a person with a better moral, if not legal, claim to make decisions in relation to the disposal of the body.

Joseph Goldsmith is a barrister at 5 Stone Buildings