Exhumations

A lady (“XY”) in her 90s had lived with her sister and brother-in-law since 1988. The sister and brother-in-law had both died and were buried in the same grave. It had always been understood by XY and her family that XY would be buried in a grave next to her sister and brother-in-law. XY believed that the adjoining grave had been reserved for her, though no record has ever been found of a formal reservation. Unfortunately, someone else was buried in the grave intended for XY. When a close friend of XY discovered this, she applied, without the knowledge of XY, for a faculty for the remains of the person who had been interred in the grave informally reserved for XY to be exhumed (with the consent of that person’s family) and reinterred in another grave next to relatives, so that in due time XY’s body could be buried in the intended grave. The Chancellor accepted that a mistake had been made and he granted a faculty.

The Chancellor was asked to grant a confirmatory faculty in respect of cremated remains which had already been exhumed (with a view to their subsequently being scattered) following the issue of a Ministry of Justice licence, which should not have issued, because the remains were interred in consecrated ground. The Chancellor granted a faculty: "Refusing a Faculty
would certainly be justified in principle, but would serve no useful purpose, and would cause and maintain offence. Granting a Faculty would render lawful what has so far been unlawful; and would regularise the present situation, which there is in any event no practical possibility of changing." The Chancellor pointed out that at the time of writing his judgment the form of application for a licence and the notes for guidance on the Ministry of Justice web site were out of date following changes to the law in 2015.

The Chancellor of the Diocese had previously given a judgment on the same facts as the present case (see Re All Saints Allesley [2018] ECC Cov 7), but the judgment was set aside when it became apparent that there had been some confusion over the provision of further representations in accordance with directions that had been made. The Deputy Chancellor considered the matter afresh. He refused to grant a faculty to authorise the exhumation of the cremated remains of the petitioner's father for reinterment next to the remains of the petitioner's mother in a parish in another diocese where the petitioner lived: '... in reality this is a change of mind based upon a change in family circumstances ... unfortunately those changes in their Family life do not amount to the exceptional circumstances that would be required to justify exhumation ...'

The petitioner wished to have his father's cremated remains exhumed from Allesley churchyard and reinterred in the churchyard of Willoughton, where the petitioner now lived and where his mother's cremated remains had been interred. During her lifetime, the petitioner's mother had expressed a wish not to be buried next to her husband's grave at Allesley, but at Willoughton, hoping that it might be possible in due course to have her husband's remains moved to Willoughton. Applying the principles laid down in Re Blagdon Cemetery [2002] Fam 299, the Chancellor found that this was a case where there were insufficient exceptional grounds to warrant the grant of a faculty.

The Petitioner, of Italian, wished to have her husband's cremated remains exhumed and interred in a family mausoleum in Italy, where she would also intend her own ashes to be interred. The reason for the request was that after the petitioner's death there would be no surviving family members in England to look after the grave, whereas the family in Italy would continue to look after the family mausoleum. Faculty granted.

The ashes of the father of the petitioners were interred in 2013. The intention of the family was that in due time the petitioners' mother's ashes would be interred in the same grave plot. After the petitioners' mother died and the grave of their father was reopened, it was found that the grave was too shallow to take a second interment, and the mothers ashes had to be interred in a plot a few rows away. The petitioners now wished to have their mother's ashes exhumed and reinterred in a grave next to their father's grave. The Chancellor determined that there had been a 'mistake' in that the father's grave had been dug too shallow, which had frustrated the intentions of the family. He therefore decided that this was an exceptional situation where a faculty could be granted for exhumation and reinterment.

There were five applications to exhume human remains. The graves had been undermined by the collapse of a badger sett following heavy rains. The Chancellor granted faculties for the remains to be exhumed and reinterred in a part of the churchyard away from the badger sett.

The cremated remains of a wife and her husband had been interred in the same plot in 1971 and 2003 respectively, and there was an upright memorial was placed over the plot. In 2004 a single story extension to the church had been built, and the memorial stone was within inches of the extension. On two occasions since 2004, thieves had used the memorial as a stepping stone to gain access to the church roof and steal the lead. On the second occasion, the memorial had fallen over. The deceased's daughter wished to have her parents' remains and memorial moved to another part of the churchyard. The Chancellor determined that the need to reduce the risk of further lead theft and of damage to the roofs of the church (i.e., public benefit) justified the movement of the remains and the memorial: "This is wholly different from those cases where exhumation is sought for private purposes".

The petitioner wished to disinter the remains of his great-great-grandparents, who died in 1879 and 1910, because an extension of the church was to be built and the grave would be against the wall of the extension and have paths on the remaining three sides. Also, it was likely that people would take a short cut over the grave to the entrance to the extension. It was proposed to reinter the remains elsewhere in the same churchyard. The Chancellor decided that there were exceptional circumstances justifying the grant of a faculty.

Unbeknown to the incumbent of the church, some cremated remains were buried very close to a sewer running through the churchyard. This fact came to light when repair work needed to be carried out on the sewer, which might cause damage to the memorial and disturb the remains. The deceased's widow requested a faculty to exhume the remains and reinter them in the same churchyard about 30 feet from their current position. The Chancellor was satisfied that the circumstances were sufficiently exceptional to justify the grant of a faculty for exhumation and reinterment.