Patel v Patel – When executors of a Will cannot agree on funeral arrangements for a deceased, what can the Court do?

Rosalind Young was in the High Court before HHJ Paul Matthews in March, instructed through Advocate to represent the first defendant when two joint executors of a Will could not agree on the funeral arrangements to be made in respect of their father, the deceased.

The case, Patel v Patel [2025] EWHC 560 (Ch), provides a helpful reminder of the factors which the Court will consider when it is required to intervene in probate matters.

Background

The deceased was born in the Gujarat region of India, and came to the UK as a young man in his early 20s. He lived in England with his wife for 70 years, and his children were born and raised in the UK. He and his wife were Hindus, and when his wife passed away, her body was cremated and her ashes scattered in England in accordance with Hindu tradition.

The Claimant (“C”) was the deceased’s son, who at the time of the trial lived in Canada. He had organised his mother’s funeral the year before. He told the Court that, after his mother’s funeral, his father had told him he wanted the same Hindu funeral rites when he died, including being cremated and his ashes scattered in England.

The first Defendant (“D”) was the deceased’s daughter, who had been living with the deceased and had become a full-time carer for the deceased, who had renal dialysis in the later part of his life. She told the Court her father had often told her he wished to go to India and die there, and if he died in the UK then he wanted his body to be taken to India for burial.

The second Defendant was the funeral home in which the deceased’s body was being held at the time, and did not take an active role in the proceedings.

The Court’s ability to intervene

There are two routes by which the Court can intervene in the roles of an executor:

1. Section 116 of the Senior Courts Act 1981
2. The court’s inherent jurisdiction

Section 116 of the Senior Courts Act 1981 reads: If by reason of any special circumstance it appears to the High Court to be necessary or expedient to appoint as administrator some person other than the person who but for this section would in accordance with probate rules have been entitled to the grant, the court may in its discretion appoint as administrator such person as it thinks expedient.

However, both C and D were joint executors of the deceased’s Will. As such, the Court was not considering appointing “some person other than the person who but for this section would…have been entitled to the grant”. In essence, the court was asked to determine which of two decisions, proposed by two persons with equal priority, should be followed. Accordingly, the Court’s inherent jurisdiction was engaged.

The Court’s inherent jurisdiction includes the ability to direct the method by which a body should be disposed. This was made clear by Sir Geoffrey Vos in Oldham Metropolitan Borough Council v Makin [2018] Ch 543, at [80]:

“In my judgment, the court does have an inherent jurisdiction to direct how the body of a deceased person should be disposed of. The court will normally, as I have said, be deciding between the competing wishes of different sets of relatives, and will only need to decide who should be responsible for disposal rather than what method of disposal should be employed. I cannot see, however, why the court’s inherent jurisdiction over estates is not sufficient extensive to allow it, in a proper case, to give directions as to the method by which a deceased’s body should be disposed of. In my view, it is.”

Factors to be considered

The Court was directed to the case of Hartshorne v Gardner [2008] EWHC 3675 (Ch), and to the assessment of Sonia Proudman QC, as she then was, acting as Deputy High Court Judge:

“The most important consideration is that the body be disposed of with all proper respect and decency and, if possible, without further delay. Subject to that overriding consideration, it seems to me that there are two types of factor that are relevant in the present case. First, those that do or might be expected to reflect the wishes of the deceased himself. Secondly, those that reflect the reasonable wishes and requirements of the family and friends who are left.” [9]

In Hartshorne, the deceased had died in a Road Traffic Accident. His parents, divorced, both lived in Worcester, while their adult son had lived in Kington for several years prior to his death. His mother wanted his body cremated in Worcester; his father wanted his body buried in Kington. The Court determined he should be buried in Kington, where he lived and worked and where his fiancée, his brother, and all his friends were based.

Klein J reiterated these factors in Anstey v Mundle [2016] EWHC 1073 (Ch) at [25], and in doing so distilled out another facet to be considered: “the location with which the deceased was most closely connected”. This factor was of particular pertinence in Read v Hoarean [2024] EWHC 3274 (Ch), another case where estranged parents agreed that their son’s body should be cremated but disagreed on what should happen to the ashes thereafter. The father wished for the ashes to be scattered on Dartmoor, with which he was said to have a close affinity. The deceased’s friends supported this. The mother wanted the ashes divided into two, one half for her to inter in her family’s grave, and the other half to be given to the father. Chief Master Shuman, hearing the case, held at [51] that it was not known what the deceased’s wishes were, but, though he had a connection to the area in which he grew up, also had “close connections and a feeling of peace” when at Dartmoor. She therefore directed that his ashes should be scattered on Dartmoor.

Decision in the present case

The first factor, the question of the deceased’s own wishes, was at the very heart of the dispute. The judge found both C and D to be measured, rational witnesses who were trying to assist the Court, and telling the truth as they believed it to be.

D submitted, and the judge accepted, that she had no personal preference for burial in India, save that she believed it to be her father’s wish. The rest of the family, including C, and the deceased’s brother who lived in India, were of the view that he should be cremated and his ashes scattered in England. Accordingly, the second factor, the reasonable views of the family who remain, were in favour of cremation.

In terms of the place where the deceased had the closest connection, the deceased had been living in England for 70 years. His wife’s ashes had been scattered here, in accordance with Hindu rites. His last visit to India had been more than 20 years ago, and although there were members of his extended family living in India, his children had been brought up in the UK, and it was where he and his wife had lived for most of their lives. Accordingly, the judge was satisfied that he was most closely connected with England.

Factors such as the additional time which would elapse if the deceased’s body were to be flown to India and burial plans to be implemented were considered; but in light of the passage of time to the date of the hearing (some three months) this was not deemed decisive. Nor was the fact that there would be additional costs incurred in a burial in India, as the judge found that, based on representations by the parties, the additional costs would not have been disproportionate to the estate.

The judge directed that the deceased’s body should be cremated and his ashes scattered in England, in accordance with Hindu funeral rites. Since he held that he had seen nothing to suggest D would not comply with her duty as an equal executor, even if the Court’s order were for cremation, he ordered that the body be released to both C and D, to be jointly responsible for arranging the funeral.

Costs

HHJ Matthews dealt with consequential matters, including costs, on paper, in a judgment handed down two days later.

Costs are, in general, at the discretion of the court, pursuant to s.51(1) of the Senior Courts Act 1981. The usual order is that costs follow the event, meaning the unsuccessful party pays the costs of the successful party. The Court may, however, make a different order, having regard to all the facts.

In probate cases, where litigation has been necessitated by a disagreement caused by the deceased, or by an issue for which further enquiry was a proper course of action, the court may order that costs come out of the estate, or that each party bears its own costs.

In this case, C was discernibly the successful party, and sought his costs. HHJ Matthews considered that the issue had arisen because the deceased had not recorded his wishes in a written form, and two rational and helpful witnesses had consequently formed different views of what those wishes were. He did not consider D would have resisted cremation in England if that had clearly been her father’s wishes. Therefore, it was appropriate for costs to be paid out of the estate.

Furthermore, D was a personal representative of the deceased, as joint executor with C. Per CPR 46.3(2), “personal representatives are entitled to be paid the costs of proceedings out of the relevant…estate”, on the indemnity basis. 46PD1.1 states: “a trustee or representative is entitled to an indemnity out of the relevant trust fund or estate for costs properly incurred. Whether costs were properly incurred depends on all the circumstances of the case, including whether the trustee or personal representative:

• Obtained directions from the court before bringing or defending the proceedings;
• Acted in the interests of the fund or estate or in substance for a benefit other than that of the estate, including the trustee’s own; and
• Acted in some way unreasonably in bringing or defending, or in the conduct of, the proceedings.

As the judge found neither C nor D had acted unreasonably, and as both were personal representatives of the deceased, costs would ultimately come out of the estate regardless of the precise order of the Court:

• If D was ordered to pay C’s costs, she would have an indemnity out of the estate in accordance with 46PD1.1;
• In respect of D’s own costs, she would be entitled to recover those out of the estate pursuant to CPR 46.3(2).

Thus the judge ordered that costs be paid out of the estate. C had filed a cost schedule; following submissions by Rosalind, C’s costs were summarily assessed with a reduction made to reflect the fact that the relative lack of complexity did not justify the claimed level of input from a senior fee earner throughout the case.

Appeal

D sought permission to appeal the decision that the deceased’s body should be cremated and the ashes scattered in England. She prepared her submissions without input from any counsel, as a litigant in person. Permission was refused by HHJ Matthews on the basis that he could see no real prospect of the appeal succeeding, nor any other compelling reason why the appeal should be heard. It remains open to D to make an application for appeal to the Court of Appeal.

---

• Share article:

---