Southwark Consistory Court: George Ch, February 2005

Half of Sylvia Swaden's ashes were interred in 1992 in the cemetery, half were scattered at Clacton-on-sea. Her second son (Paul) became the registered owner of exclusive rights to burial in the plot. He claimed that there was a rift between his late mother and his father and that she did not want her husband to be buried in the same grave as her after his death. The chancellor found that the rest of the family had contributed both to the funeral expenses and the memorial. Paul had an entry made in the cemetery register that the plot was not to be opened without personal application to him. In 2003 Mrs Swaden's husband died and his ashes were interred in the plot. The chancellor concluded that it was more likely than not that the required documents had been signed with a forged signature, thus Paul's father was interred without Paul's consent. Matters descended to overt squabbling at the graveside. Paul petitioned to have his father's remains removed from the plot. The Chancellor concluded that, on the particular facts of the case and the background facts that he had found that a constructive trust had been created such that Paul's legal title was held on trust for the family and thus Paul had no right to refuse consent for his father's interment as this could be enforced by the executor (Williams v Williams (1882) 20 Ch D 659). He concluded that the law of proprietary estopppel could have achieved the same result, as Paul's father had contributed to the memorial, which plainly envisaged that he would be buried alongside his wife. Thus Paul's consent was unnecessary and the false burial form of no effect. The chancellor was not persuaded that this there had been a true mistake here as such term is applied in exhumation cases, and refused the petition.

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(200) 8 Ecc LJ 238