The Second Part of the review of the ecclesiastical court judgments during July 2022.
Nine consistory court judgments were circulated in July, and the three featured in this
first part of the round-up all relate to Reordering, extensions and other building works, and Audio Visual Equipment. It also includes CDM Decisions and Safeguarding, Reports from the Independent Reviewer, Privy Council Business, Visitations, and CFCE Determinations, as well as links to other posts relating to ecclesiastical law.
This second part reviews the remaining six judgments which concern Churchyards and burials.
- Development of churchyard
- Designation of closed churchyard
- Churchyard Regulations
- Reservation of grave space
Although not a judgment of the consistory courts, Hodge and Deery Ltd v HMRC [2022] UKFTT 00157 (TC) is nevertheless pertinent. The claimants installed ready-to-use, flexible vault burial chambers in cemeteries on behalf of a third party to combat ground contamination from adjacent graves. They did not apply VAT, relying on the exemption for “the making of arrangements for or in connection with the disposal of the remains of the dead”.
HMRC challenged the VAT treatment on five separate grounds, including that the exemption only extended to supplies directly involved with the disposal of the remains of a particular dead person and that the exemption can only be applied to funeral directors with care and custody of the deceased, not sub-contractors. HMRC also referred to its own public notice on the matter (VAT Notice 701/32), which made clear that the exemption can only apply to the party with responsibility for the deceased. However, the FTT ruled that the installation fell within the definition of the VAT exemption. [Hodge and Deery Ltd v HMRC [2022] UKFTT 00157 (TC)] [Top of section] [Top of post]
Designation of closed churchyard
See Privy Council Business
Re St. John the Evangelist Lawley [2022] ECC Lic 2 Doris Palin died on April
2021 aged 90 and leaving eight children (one of other daughters having died in 2014). Her remains were interred onMay2021 in the plot in the churchyard of St John the Evangelist, Lawley which already contained the remains of her late husband [1]. Relations between Mrs Palin’s children were not good during her lifetime. Matters got worse after Mrs Palin’s death when it was discovered that Mrs Palin had made a will in March 2016 leaving her entire estate to Jeremy and Christina Ray and appointing Mr and Mrs Ray as executors and sole beneficiaries of her will [2]. This had caused a rift in the family, including a dispute as to the validity of the will. The dispute caused the eight siblings to divide into two camps [4]
A memorial was erected on the plot but the decision as to its installation was preceded by dispute between the siblings as to the conduct of Mrs Palin’s estate and in particular a dispute as to whether one of her sons was entitled to any involvement in those matters [3]. The Interim Minister approved the installation of the memorial under the power delegated her by the Churchyard Regulations, taking the view that such approval was appropriate because the wording of the inscription was of a kind which she was permitted to approve, and because the application was being made by the executors of the deceased [6].
Four of the siblings petition for the following relief. First, they asked the court to “require” Mrs Ray to “engage with the surviving children [of Doris Palin] in agreeing the four line epitaph”. Second, they seek an order that if Mrs Ray declined to engage with her siblings or if agreement is not reached then the epitaph should be removed. Finally, they asked that the court set out a time limit within which such agreement or removal is to be achieved [10].
The Deputy Chancellor took the view that such an order was not appropriate; it was highly doubtful whether the court had power to make such an order (as opposed to imposing such a requirement as a condition on the granting of a faculty). He wa satisfied that even if there were such a power, it would not be right to exercise it here in the terms sought. “It would be necessary to spell out in some detail the form the engagement was to take and potentially futile because the court cannot compel agreement where the parties choose not to agree” [35].
Instead, he had to consider whether the inscription was appropriate, or whether there were sufficiently good reasons for removal and replacement of the memorial. He noted “[i]f the memorial is now in appropriate terms do the way in which the inscription was chosen and the absence of advance agreement by all the siblings to the wording mean that the wording should be removed and the exercise of seeking agreement on a suitable inscription start afresh? [42]. He decided that the inscription was not inappropriate, and there was therefore no good reason to order the removal of the stone, simply because there had not been consultation with and unanimous agreement between all the siblings. Petition dismissed. [Re St. John the Evangelist Lawley [2022] ECC Lic 2] [Top of section] [Top of post]
Re St. John Walsall Wood [2022] ECC Lic 3 The Petitioner sought a faculty authorising a memorial for the grave of his wife. A faculty had already been granted by the Chancellor in respect of the burial of the cremated remains of the deceased and reservation in the same plot for the burial of the mortal remains of the Petitioner [1]. The Deputy Chancellor identified two matters to consider in relation to an application for a memorial to mark the grave in which the petitioner’s wife’s ashes were buried: reference on the memorial to the petitioner, still living; a modified version of the poem “Do not stand at my grave and weep”. In addition, PCC had raised an objection to the type of stone [3].
As to the first, the petitioner agreed to withdraw the proposal, and to leave space for a further inscription, and “[f]or the avoidance of doubt, it follows that the emblem of the Staffordshire Regiment and the words “Together Forever” would not be included on the monument at this time and whilst the Petitioner is still alive [5].
Notwithstanding the variety of monuments already present within the churchyard i, the Deputy Chancellor considered that the design of the memorial was too substantial departure from the Regulations to be permitted by the grant of a faculty. “The use of blue will be notably incongruous in the location reserved, because all the nearby stones conform essentially to the Regulations. The use of columns will make the monument even more pronounced. In combination, there will be a distraction from the other memorials, compounded by a comparatively prominent location” [14].
With regard to the inscription, the Deputy Chancellor considered the matter of the inscription with reference to the Churchyard Regulations [7, 9] and to Re St. Leonard Alton [2019] ECC Lic 10 [8]. The PCC, Wardens and Rural Dean had no
objection to the poem [19], and whilst the Deputy Chancellor considered that the inclusion of “I am still everywhere” was permissible as consistent with the tone of the preceding parts of the poem, the additional final line, however, was problematic in referring to “your” lives [20]. Consequently, he did not approve of the design of the proposed memorial, which included some blue stone, and considered that the wording of the version of the poem was ‘over personal and inappropriate’, but indicated that he would approve ‘a more discrete monument with suitably revised wording’. [Re St. John Walsall Wood [2022] ECC Lic 3] [Top of section] [Top of post].
Re St. Michael and All Angels Pelsall [2022] ECC Lic 6 The petitioner sought to install a memorial on her mother’s grave. However, there were two areas of controversy regarding the proposed memorial: the stone memorial did not conform to the Diocesan Churchyard Regulations; and the family wished to use the maiden name only on the memorial to the deceased [1]. The memorial did not conform to the churchyards regulations, being in the shape of a large heart with two smaller hearts as flower containers [2]. Also, the petitioner wished to have her mother’s maiden name on the memorial, rather than her married name. Given the number of heart-shaped memorials close to the grave, the Deputy Chancellor decided to permit the large heart-shaped stone [6], and also the small heart-shaped flower holders, provided that they were fixed to the plinth.
The Petitioner’s family wished to use the maiden name only on the memorial to the deceased, despite the fact that she did not consistently use her maiden name, although she clearly wished to do so and did so on an informal basis [11]. Citing with approval Halsbury’s Laws of England, the Deputy Chancellor explained:
“[10]. The position in law is remarkable for its informality. Whilst an individual acquires her original name when her name is registered at birth, the law prescribes no rules limiting a person’s liberty to change her name. Forename and surname can be changed by use and reputation, without any formality, and in addition or substitution for an original name. So much is set out in Halsbury’s Laws of England, volume 88 (2019) at §329. That work also sets out the proposition that a surname in common law is simply the name by which a person is known, and names can be changed “at pleasure” (ibid. §330); these passages in a somewhat more dated form were cited with approval in Standard Property Investment plc v British Plastics Federation (1985) 53 P & CR 25 at 29 per Walton J). Hence, when marrying, a woman is not obliged to take her husband’s name, nor to abandon that name at dissolution of a marriage. A deed poll is no more than a means of authentication and to obviate doubt and confusion (op. cit. §331).”.
“[12] It follows that I find that there is no legal or practical objection to the name of the deceased on her memorial being her maiden name, and without reference to her married name, and I will grant a faculty accordingly”.
He also stated:
“[10]. …that the risk of official confusion can be removed by adding an explanatory note to the burial register to inform anyone trying to trace details of a burial and making an enquiry that differing names were in use. The churchyard plan can also be annotated with an entry such as “[Married Name], nee [Maiden Name]”. By these means, her chosen name for her monument, and her name to her family and friends, may be employed as she and her children would wish.”
[Re St. Michael and All Angels Pelsall [2022] ECC Lic 6] [Top of section] [Top of post]
Re St. Mark Ocker Hill Tipton [2022] ECC Lic 4 The Deputy Chancellor granted a faculty for the reservation of a grave space for 20 years, rather than for the customary 50 years [1]. The grave space is to be reserved for two people who are each now 56 years old; consequently,
“[t]hey may each reasonably expect to outlive the term of this faculty. The problem
with granting a longer duration, however, is that the graveyard currently has 150 spaces and 7 funerals a year. So the graveyard could be full and closed before a longer reservation needs to be exercised [2]”.
The Deputy Chancellor cited with approval the principles enounced by Chancellor David Hodge QC in Re St. Mary Thame [2022] ECC Oxf 2: “it will not usually be right to extend the duration of the faculty beyond the period for which the churchyard is likely to have space for burials, unless there are exceptional circumstances … [2]”. However, there will be permission in the faculty for the petitioner to apply, on paper, within six months before its expiry, for an extension of that period of 20 years, supported by evidence of the prevailing circumstances, and of the views of the priest and the PCC at that time.
Whether or not any extension would be granted is likely to depend upon: (i) the personal circumstances of the petitioner at that time; (ii) whether, by that time, arrangements have been made to provide additional space for burials, whether by the acquisition of further land, or the re-use of parts of the churchyard, or otherwise; (iii) the views of the priest at that time; and (iv) the current policy of the PCC towards the reservation of grave spaces [3].
The Deputy Chancellor finally urged the PCC to adopt a policy on grave reservations. Whilst this would not bind the Chancellor or Deputy Chancellor, it would be given due respect and will be influential on future decisions [4]. [Re St. Mark Ocker Hill Tipton [2022] ECC Lic 4] [Top of section] [Top of post]
Re St. Mark Ocker Hill Tipton (2) [2022] ECC Lic 5 The Deputy Chancellor granted a faculty for the reservation of a double depth grave space for the period of 50 years usually allowed. He distinguished this case from Re St. Mark Ocker Hill Tipton [2022] ECC Lic 4, supra, where he limited the reservation for 20 years; the couple were both about 65 years old, and one was diagnosed with terminal cancer. “It follows that the double plot will be in use quite soon and very likely fully in use well within the 50-year period”.
Another distinguishing feature is that it would be highly unlikely that the plot reserved by this faculty would be used for a second interment of anyone but a close member of the family in any event: “[i]t follows that a shorter duration of faculty would be unlikely to serve any useful purpose and it is unlikely to extend beyond the period during which the graveyard is likely to remain open or, at least, not by long. [Re St. Mark Ocker Hill Tipton (2) [2022] ECC Lic 5] [Top of section] [Top of post]
Re St. Mary Magdalene Bolney [2022] ECC Chi 4 The petitioner wished to reserve a double depth grave in the churchyard for himself and his wife, next to the grave of their son, who had died in a tragic accident at the age of 24. The petition was opposed by the Associate Priest and the PCC on the basis that the space for burials is limited and since 2021, the parish has had a policy of opposing all further reservations [1]. There are currently 18 grave spaces remaining for future burials in the churchyard; as there are on average three burials per year, the churchyard will be full in just over six years [3].
The petitioner conceded that he and his wife did not have a legal right of burial in the churchyard, despite living close to the parish boundary and having long-standing and significant connections with the church. The Worshipful Mark Hill observed:
“[6]. [The Petitioner’s son] similarly had no right of burial but the parish priest consented to his burial. It seems to me that were [the Petitioner] or his wife to die, their links to the parish are sufficiently well-established that a future parish priest, in the exercise of his or her discretion, would permit their burial in the churchyard. The presence of their son’s remains further strengthens their claim. [They] could put the matter beyond any doubt by having their names added to the electoral roll.”
He further noted [10]:
“[10]. Notwithstanding the infelicitous wording of the policy, its effect is clear, namely that with so few grave spaces remaining the parish would not support any future applications for reservation, whether from those with a legal right to burial or those without. The parish priest and PCC have followed that policy in objecting to the current petition”.
“[16] For completeness, in giving directions, I raised for consideration the enlarging [their son’s] grave to be a triple [depth], so as also to accommodate [the Petitioner and his wife] when their time came. This was rejected on two grounds: first, because [the Petitioner] did not wish his son’s remains to be disturbed by the technical exhumation required in placing them lower in the ground; and secondly because his widow wished that she also be buried in what was intended as a double depth plot, and that there be no other interments in the grave”.
In the circumstances, the Chancellor felt it would be unfair to override the parish policy and dismissed the petition. [Re St. Mary Magdalene Bolney [2022] ECC Chi 4] [Top of section] [Top of post]
Notes on the conventions used for the navigation between cases reviewed in this post are summarized here.