Key Facts
- •Dispute over funeral arrangements for Peter Adebayo Otitoju.
- •Claimant (Ms. Otitoju) is one of the deceased's five children, supported by siblings and mother.
- •Defendant (Ms. Onwordi) was the deceased's former partner.
- •Second claimant (Ms. Adesanya) is Ms. Onwordi's daughter and claims to be an executor under a will dated 15 July 2023.
- •Initial order granted to Ms. Otitoju by Roth J on 6 September 2023, restraining Ms. Onwordi from taking possession of the body.
- •Ms. Onwordi applied to set aside Roth J's order.
- •Will dated 15 July 2023 names Ms. Adesanya and Mr. Kibindo as executors.
- •Ms. Otitoju challenges the will's validity on grounds of capacity, knowledge and approval, and genuineness of the signature (fingerprint).
- •The court considers the validity of the will and the right to possession of the deceased's body for funeral arrangements.
Legal Principles
Formal requirements for will validity (signing by testator, potential for fingerprint as signature)
Section 9, Wills Act 1837; Re Estate of Finn [1935] All ER Rep 419; Theobald on Wills, 19th ed, 3-033
Presumption of will validity (formal and substantive requirements)
Theobald on Wills, 19th ed, 3-033; Williams, Mortimer and Sunnucks on Executors and Administrators [10-26]; Gill v Woodall [2011] Ch 380
Right to possession of deceased's body for funeral arrangements; duty falls on personal representatives; court's power under section 116, Senior Courts Act 1981
Buchanan v Milton [1999] 2 FLR 844; Section 116, Senior Courts Act 1981; Re Taylor (deceased) [1950] 2 All ER 446; Re Clore [1982] Fam 113; Ganoun v Joshi [2020] EWHC 2743 (Ch)
Court's inherent jurisdiction to override appointed personal representatives
Re JS [2016] EWHC 2859 (Fam); Anstey v Mundle [2016] EWHC 1073 (Ch)
Outcomes
Roth J's order set aside.
The court, considering the evidence and applying the relevant legal principles, found that the will, while challenged, had sufficient prima facie validity to determine funeral arrangements. The challenges to the will's validity do not constitute 'special circumstances' under section 116 justifying overriding the executors' entitlement.
Declaration that the executors named in the will (Ms. Adesanya and Mr. Kibindo) are entitled to possession of the deceased's body and to arrange the funeral.
The court found insufficient evidence to rebut the presumption of validity of the will. The challenges to the will, while noted, did not constitute sufficient 'special circumstances' to justify overriding the executors' right under Section 116 of the Senior Courts Act 1981.