“the law about churchyards and monuments erected in churchyards is arcane, and is not well understood even by the clergy and the parish officers who have to deal with it”
McClean Ch, Re Kilnhurst St. Thomas
The ownership of a headstone is important in relation to the nature of its memorialisation and the liabilities related to safety. A comprehensive review of the legislation is provided by McClean Ch. in Re Kilnhurst St. Thomas [2012] Sheffield Const. Ct., McClean Ch. Also see: Church of England Opinions Churchyards: ownership of monuments and trees[1]; and the Ecclesiastical Judges’ Association Report of Working Party into Churchyard Memorial Regulations, (October 2024).
The recently reported judgment Re St. Lawrence Mereworth [2026] ECC Roc 2 concerns a petition which sought a confirmatory faculty for the restoration of a 1955 memorial, and explores the application of and exemptions to “heir-at-law”. The ELA Summary is here.
Confirmatory faculties
The judgment concerns a confirmatory faculty for the restoration of Alan Waller’s 1955 memorial at St. Lawrence, Mereworth, Kent. Without authority, the memorial had been substantially cleaned and repaired, its lettering replaced[3], and the recorded month of death corrected from September to June[5]. The space surrounding the grave kerbs had been filled with bright blue glass or stone chippings, whereas there were no stones before[4].
A significant issue was ownership of the memorial. Alan Waller had six children, but his two eldest sons and their descendants had also died without surviving descendants, v infra. His next surviving son, John, then became the owner of the memorial[7]. John opposed its restoration. Although he was said to have previously agreed to the works being done, there is apparently no contemporaneous supporting evidence. Willink Ch. noted that the rift between John and the other three siblings was so severe that none of the three was able to provide John’s contact details, which had to be obtained from the incumbent[8]. A long-standing family feud was also a feature of Re Kilnhurst St. Thomas (at [2] in the judgment).
Principles of legislation
Willink Ch. reviewed the principles of the legislation on confirmatory faculties, [10] to [12], in which he considered Re All Saints Buncton [2018] ECC Chi 1 and more recent cases [2]. He then addressed the law relating to works to memorials, [13] to [18], and noted that S66 Ecclesiastical Jurisdiction and Care of Churches Measure 2018 provides [emphasis added]:
(1) The consistory court of a diocese may grant a faculty for the moving, demolition, alteration or carrying out of other work to a monument erected in or on, or on the curtilage of, a church or other consecrated building or on consecrated ground, even if the owner of the monument—(a) withholds consent to the faculty, or (b) cannot be found after reasonable efforts to find him or her have been made.”
Consequently, the court could not consider a petition for such a faculty unless and until it had addressed:
- who the owner of the memorial is; If the owner can be identified;
- whether the owner consents to the work or not (whether or not a failure to consent takes the form of failure to respond, neutral withholding of consent or active opposition); and
- if the owner cannot be identified, whether reasonable efforts to find the owner have been made.
Until 1964, the refusal or failure of an owner to consent to work being done on a monument was apparently “a complete bar to a faculty for any such work”. The position was altered by the Faculty Jurisdiction Measure 1964 [3]. Subsequently, S7 Church of England (Miscellaneous Provisions) Measure 2014 amended S3, to permit the grant of a faculty in cases of such urgency that it would not be reasonable for the petitioner to seek the consent referred to. This amended provision was repealed and re-enacted in the Ecclesiastical Jurisdiction and Care of Churches Measure 2018. The Chancellor noted that as this is a consolidating Measure, it was presumed not to have changed the law.
After reviewing the legislation relating to the ownership of a memorial, [19] to [21], and heir-at-law [22] to [23], Willink Ch. considered who owned the memorial in the instant case. He explained:
“[25] Alan Waller’s eldest son was David. He would have been the first heir of Alan. He is now deceased, having had one son – David junior, who (if he had survived David) would in turn have been the heir. David junior died aged 18, without children. After both David and David junior, Alan’s second son, Keith, would then have been the heir, if he survived them. In any event, he has also died, without children. This means that, there being no male descendants from John’s two elder brothers, the next son, John, is now Alan’s heir. Consequently, John is the owner of the memorial,
and then addressed the issue of what principles to apply when the owner of the memorial does not consent to the grant of a faculty. The Chancellor noted:
“cases on this particular question are rare. In Oldswinford, St Mary (1997) 17 CCCC 37 (as cited in Re St. Augustine Droitwich Spa [2016] ECC Wor 2 [4]), the court considered a petition to remove a headstone whose inscription was said to be factually inaccurate – in its reference to the parentage of the deceased”.
In response to Mynors comments from [30] to [33] and [36] in St. Augustine Droitwich Spa , Willink stated [emphasis added]:
[29]. However, the suggestion that a faculty should be granted against the wishes of a memorial owner in “altogether exceptional” circumstances has been doubted. In re Kilnhurst, St Thomas (2012, Sheffield consistory court), Maclean Ch said:
“[21]. The views of the owner of a memorial are not necessarily conclusive. It has been said in some of the cases that the courts will act against the wishes of the owner only in exceptional circumstances. I am not sure that the practice shows the courts applying that rather strict test. Or, at least, it is clear the ‘exceptional circumstances’ include the sort of intra-family dispute that lies at the heart of the present case“…
[30] In my judgement, the test to be applied to any such petition must recognise not only the burden on any petitioner to persuade the court to grant the faculty they seek (expressed in the Duffield questions as “the ordinary presumption in faculty proceedings ‘in favour of things as they stand’), but additionally give due weight to the views of the memorial owner who (in the words of the Bishop of Chester cited at paragraph 16 above) “would have the right to object and have the case heard.
The cases in which such a test may be met could very well be described as “exceptional” – albeit not in the sense of “exceptionally unusual” but in the more nuanced meaning of the word as expounded in re Blagdon Cemetery [2002] Fam 299, meaning “forming an exception”. In re Blagdon Cemetery, the question was whether the facts of a case formed an exception to the general rule of permanence of burial; in a case such as this, the question is whether the facts of the case form an exception to the general rule that the owner of a memorial may determine what is done to it. Whether the facts in a particular case warrant a finding that the case is to be treated as an exception is for the chancellor to determine on the balance of probabilities (as in re Blagdon Cemetery at [33]).
Disposal [31] to [37]
In granting a confirmatory faculty, the Chancellor noted that had he been presented with a petition for a faculty before the work had been carried out, together with John’s grounds for opposing the petition, he would have taken the opportunity to engage with him on the issue of the incorrect recording of the date on his father’s memorial.
Having considered carefully John’s reasons for not having wished the memorial to be restored, he recalled the well-known dictum, that a grave memorial has a threefold purpose: to honour the dead, to comfort the living, and to inform posterity about the deceased[33]. All in all, Willink Ch was satisfied that, even against the wishes of John as the owner, he would have granted a faculty for the proposed works if one had been sought[34].
On whether this case would fall within the principle wherein a confirmatory faculty might be granted for works which would not have been approved, on pastoral grounds, the work was undertaken with the ostensible permission of the incumbent, bearing in mind that the permission was given in ignorance of the ownership of the memorial, or of the significance of the point. And it was…a mis-statement of the true position to indicate that the work could be carried out without a faculty, although [he was] sure this would have been an oversight. On balance, bearing all these matters into account, [the Chancellor] would in any event grant the confirmatory faculty sought[35].
The Chancellor therefore directed that a confirmatory faculty pass the seal as sought, subject to the condition that the blue chippings will be removed within three months of the date of th3 judgment, any replacement having been approved by the incumbent and the PCC before being introduced[36].
[1] Scroll down to “Churchyards: ownership of monuments and trees” and to “Monuments“.
[2] Re St. Mary Middleton [2022] ECC Lee 3; Re St. Andrew Kinson [2024] ECC Sal 3; and Re St. Michael Twerton-On-Avon [2024] ECC B&W 1.
[3] The Bishop of Chester: House of Lords motion that that Measure be presented for Royal Assent, Lords Hansard [24 March 1964] vol 256 Col 1138.