Burial in the wrong grave and what (possibly) to do about it

Stewart Dickson, son of Rose and Charles Dickson, died aged 27 in 2011 and was buried in the churchyard of St Andrew, Thringstone. His parents applied for and were granted a faculty to reserve the immediately-adjacent space to him so that in due course they could be buried next to him; and the faculty was granted on condition that the reservation should be marked and endorsed on an up-to-date plan and marked discreetly on the ground. Unfortunately, the priest-in-charge, the Revd Mr Burgess, marked the plot inaccurately.

In March 2013 another parishioner, David Garrett, died; and because the oversight by Mr Burgess he was buried in the plot reserved for the Dicksons. Mrs Dickson and her daughter, Yvonne McIlwraith, were offered the plot next-but-one to Stewart Dickson’s but rejected it. Each family felt sorry for the other; but the Dicksons believed that they were entitled to the plot that they had reserved, while the Garretts held to the view that once David Garrett had been buried he should not be disturbed. Said Ms McIlwraith, “We have said all along the only plot acceptable is the one next to my brother. It is a horrendous mistake by the church and they have to abide by our wishes. We feel for the other family but we have no option but to take our stance”.

The Archdeacon referred the matter to the Chancellor, Mark Blackett-Ord, who ruled on the matter in Re St Andrew, Thringstone [2013] Leicester Ch Ct.

Blackett-Ord Ch was faced with an unenviable choice:

“What is unusual in the present case … is that it is not (as is more usual) the family of the person to be moved who seek the disinterment. Indeed they positively oppose it. It is the Dicksons, not the Garretts, who wish to see the remains of Mr Garrett removed” (para 21).

Whatever was decided, one side or other was going to feel hurt and aggrieved:

“It is a serious matter to order the disinterment of a body in the face of opposition by the family. On the other hand, it seems to me to be an equally serious matter that a family who have been granted by faculty the reserved use of a burial space beside a beloved family member, should lose any right to that space if another person is wrongly buried there” (para 22).

He saw his task as one of resolving the case in the manner that would cause the least injustice (para 23). He concluded that justice required that the rights over the grave space should remain with the Dicksons – who had reserved it and paid for it – rather than with the Garretts (para 29). He therefore ordered:

  • that the remains of Mr Garrett should be exhumed and reinterred within the churchyard;
  • that the reinterment should be performed by experienced funeral directors with a priest present; and
  • that Mr Burgess should take no part in the proceedings.

Since Mr Garrett had already been committed in a funeral service, a second service would not be required.

The Chancellor also suggested that, in future:

“(a) the standard faculty order reserving a grave space should in future cases state clearly that the obligation to mark a reserved plot is an obligation on the PCC or on the incumbent and churchwardens and not on the petitioners; (b) no interment in any graveyard should take place unless the officiating priest has satisfied himself or herself that the proposed grave space is not a reserved plot” (para 35).

Costs were awarded against Mr Burgess, who had admitted that he had been at fault.

Comment

Sadly, “wrong” burials are by no means unknown. As we noted in a previous post, a similar mix-up occurred in Re St Peter Dunchurch [2013] Coventry Cons Ct, in which a wholly unrelated person had been buried in the plot reserved for Mrs P-W so that on her death she could be buried alongside her husband. In the Dunchurch case, however, the family did not petition for the mistakenly-interred remains to be exhumed and reinterred elsewhere because they did not wish to distress the family of the person already buried there, who were unaware of the mistake. Instead, Chancellor Eyre granted permission for the exhumation of Mr P-W (who had been buried in the correct plot), his re-interment elsewhere in the churchyard and the reservation of a new adjacent plot for Mrs P-W.

But no such solution was possible in the Thringstone case, which aroused considerable local publicity in the Leicester Mercury: here and here. Possibly the nearest recent parallel is Re Jean Gardiner [2003] Carlisle Cons Ct, in which a faculty was granted to exhume the wrongly-buried remains of Mrs Jean Gardiner and to reinter her in an adjacent reserved plot, despite the objections of her family.

If there is any lesson to be learned from Re St Andrew, Thringstone (and, indeed, from similar cases in the past) it is that PCCs and incumbents need to be ultra-careful in marking out and recording plots. No “blame” could possibly attach to either family: both were merely victims of circumstance – and one suspects that the Dicksons have emerged from the experience only very little happier than the Garretts.

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