On 10 January, The Independent reported “For sale: Four-bedroom terraced house, £650,000 – with previous owners’ bodies in back garden”. The estate agent’s description of this property in Teddington ended with the statement “[t]he rear garden measures approximately 50ft in depth and has significant width. It is important to note that the previous owners’ last wishes were to be buried in this garden, which is where both currently rest..” It continued “if the new owners did want to remove the bodies, they would have to seek permission from the next of kin and pay an estimated £7,000”. A quick call to Curchods, the estate agents, by The Guardian elicited further information,
“the husband and wife … are both interred under a floral display in the garden. But … the husband indicated before he died that he was happy for them to be moved if necessary in the future. With no direct relatives still living, an exhumation licence should be easy for buyers to secure.”
Readers who answered question 4 of our 2012 End of Term Quiz will be aware that certain environmental criteria must be satisfied prior to home burial of human remains . Additionally it is necessary to check: whether the local Council would consider this as a “material change of use” and require this to be registered; and the existence of relevant bye laws or restrictive covenants. Nevertheless, according to the Independent article, the practice is “more common than thought in most populated areas of the UK”. In the reported case, in view of the estimated £100,000 costs of necessary extensive repair work, it is suggested that the 1875 property would be sold to a developer. However, regardless of the purchaser, some clarification of the reports in the media is clearly necessary.
The presence of human remains within the curtilage of any property raises two questions in relation to its sale: if they are to remain in situ what access, if any, are relatives to be permitted to visit the burial; and if the remains are to be exhumed, which parties should be consulted and where should their final resting place be. The absence of direct relatives such as in relation to the Teddington property adds a further dimension.
Access Issues relating to access would normally be addressed within the terms and conditions of the sale, and the absence of direct relatives should simplify this aspect. In Rudewicz, R (o.a.o.) v Secretary of State for Justice & Ors  EWCA Civ 499, Stanley Burnton LJ acknowledged that the purchaser of the property in question was under no obligation to permit access for that purpose, and if such access were to be accorded at all, it would only be on a very restricted basis, i.e. once per year. Furthermore, it was noted that any such permission could be withdrawn at any time.
Exhumation This would require a licence issued by the Ministry of Justice under section 25 Burial Act 1857, for which there is a standard Application Form. Part A of the form requires a number of details concerning the deceased, and although it can be completed by anyone, it must be signed by the next of kin and those of equal kinship (i.e. if a child is the next of kin, then all the children would need to sign the form). In Rudewicz, the judge noted [para.10]
“the practice of the Secretary of State in relation to applications under section 25 has always been to regard the wishes of the deceased’s next of kin as very important”, [para.10].
There is no general definition of “next of kin” in English law although the Administration of Estates Act 1925 refers to the ‘statutory next of kin’ and lists a hierarchy of persons who will inherit the possessions of someone who dies intestate. This is included in Rule 22 of the Non-Contentious Probate Rules 1987, No. 2024 (L. 10) which gives the order of priority for grant in case of intestacy, although it is subject to section 116 of the Senior Courts Act 1981, (formerly known as the Supreme Court Act 1981).
Rudewicz was a special case, since
“when it comes to members of religious orders, the head of the relevant order is generally regarded as the next of kin. Such an approach is reinforced in the present case by the fact that the constitution of the Fathers (as laid down in 1930) does not entitle a member, even one as exceptional as the Priest, to have enforceable views as to where he should be buried”, [para.10],
and it was this factor, rather than the familial relationship between Ms Rudewicz and the deceased – first cousin once removed – that was considered to be critical in relation to this point.
The FAQs produced by the MoJ address the issue “What if I cannot obtain the consent I need?” and state:
“If the person whose consent you need is not immediately available, you should explain the circumstances in a covering letter. Without the consent, however, a decision on the application is likely to be delayed.
If you do not know the identity or the whereabouts of any person whose consent is necessary we would normally expect you to show that appropriate enquiries had been undertaken. This could be, for example, by advertising in a newspaper circulated within the appropriate area (e.g. the person’s last known whereabouts.”
From this it appears as though the onus of providing evidence of “appropriate enquiries” rests with the person seeking permission for exhumation, although no guidance is given of the extent of such enquiries needed to satisfy the MoJ. However, in Plantagenet Alliance Ltd, R (o a o) v Secretary of State for Justice & Anor  EWCA (Admin) (15 August) the court noted [para.28] the statement of the Head of the Coroners, Burials, Cremation and Inquiries Policy Team at the MoJ that that the Secretary of State’s practice is only to “consult” relatives of identified remains in cases where that individual has been buried “recently” and, for these purposes, recently means “within the last 100 years”. Although not relevant in the present case, were an archaeological investigation in prospect, different information would be required as in the case of Richard III.
Human Rights The application of human rights legislation in the context of the deceased is uncertain. In Rudewicz, when assessing whether Article 8 was engaged Burnton LJ stated
“[i]t might have been different if there had been a close personal relationship, or even a close familial relationship, between Ms Rudewicz and the Priest, but they never met, and she is a distant relative. It is difficult to see how her family life or private life can fairly be said to be involved on the facts of this case”, [para. 39].
However, in his consideration of this statement, in Plantagenet Alliance Ltd, R (o a o) v Secretary of State for Justice & Anor  EWCA (Admin) (15 August), Haddon-Cave J stated:
“It is clear from European jurisprudence, however, that the views of a deceased person as to his funeral arrangements must now be taken into account (per Cranston J in R (Burrows) v HM Coroner for Preston  EWHC 1387 (Admin)). For this reason, and in view of the unusual circumstances of this claim by traceable descendants of a famous Royal figure, [Richard III], it may be said that Article 8 has some role to play” [para 33].
Nevertheless, this is not an universally held view and in Ibuna & or v Arroyo & orsi  EWHC 428 (Ch) Peter Smith J observed [para. 50]
“I confess that I have 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 is in effect what Cranston J is saying [in Burrows]. I would respectfully disagree with his conclusion in paragraph 20 and 29 as set out above. It seems to me that the established law is correctly summarised by Hale J as she then was in Buchanan which gives the executor the primary duty to dispose of the body. In disposing of the body the executor is entitled to have regard to the expression made by the deceased but is not bound by them. Given that principle in my view there is no room further for any application of any human rights concepts to protect the right of the body to speak from death as it were.”
When the judicial review Plantagenet Alliance Ltd, R (o a o) v Secretary of State for Justice & Anor is heard this year, it is hoped that there will be some clarification on this issue, and other aspects of the implementation of section 25. With regard to consultation, the court has already acknowledged [para.28] that “Secretary of State’s practice is to “consult” relatives of an identified [person] in cases where that individual has been buried ‘recently’ ” – In the case of the four-bedroomed property in Teddington, the wife died in 2011 and her husband in 2013.
Wishes of the deceased In Ibuna, Peter Smith J reviewed the issue of possession of the body and stated [para. 44]
“A recent starting point is the decision of Hale J as she then was in Buchanan v Milton  2 FLR 844 at paragraph 845H as follows:-
There is no right of ownership in a dead body. However, there is a duty at common law to arrange for its proper disposal. This duty falls primarily upon the personal representatives of the deceased (see Williams v Williams (1881) 20 ChD 659; Rees v Hughes  KB 517). An executor appointed by will is entitled to obtain possession of the body for that purpose (see Sharp v Lush (1879) 10 ChD 468, 472; Dobson v North Tyneside Health Authority and Another  1 FLR 598, 602, obiter) even before the grant of probate. Where there is no executor, that same duty falls upon the administrators of the estate …”
As noted above, Peter Smith J did not subscribed to the view that this position was altered by human rights provisions. Furthermore, most of the relevant case law associated with these various decisions focuses on the custody and possession of a body up to and including burial, but not thereafter.
In summary, the position would appear to be:
– unless a specific agreement is made, the purchaser will be under no obligation to permit the access of relatives and others to the grave;
– permission to exhume the bodies must be granted by the Ministry of Justice, and the wishes of the next of kin will be one factor it takes into consideration.
– whilst the wishes of the deceased should be taken into consideration, most authorities indicate that there in no obligation to follow them.
– further clarification may result from the judicial review Plantagenet Alliance Ltd, R (o a o) v Secretary of State for Justice & Anor.
 Environment Agency non-statutory guidance Funeral practices, spreading ashes and caring for the environment.
 There is no general definition of “next of kin” in English law although the Administration of Estates Act 1925 refers to the ‘statutory next of kin’ and lists a hierarchy of persons who will inherit the possessions of someone who dies intestate.
 In November 2013, the Church of England General Synod approved for Final Drafting and Final Approval the Draft Church of England (Miscellaneous Provisions) Measure, GS 1866B which will inter alia make changes to s 25 Burial Act 1857 only in so far as it affects the CofE, as we discussed here.