Waldron v Howick Funeral Home HC Auckland CIV 2010-404-5369

[2010] NZHC 1467

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-005369

BETWEEN  CHARMAINE JUSTINE WALDRON FRANCEINE LOUISE WALDRON Applicants

ANDHOWICK FUNERAL HOME (VERNON WARREN) UNDER LAWFUL INSTRUCTIONS FROM NORMAN ELLIOTT

Defendant

Hearing:         17 August 2010

Counsel:         Applicants in person

NJ Elliott in attendance

Judgment:      17 August 2010

ORAL JUDGMENT OF RODNEY HANSEN J

Copies to:           Ms CJ Waldron and Ms FL Waldron, 31 Third Avenue, Kingsland, Mt Albert, Auckland

(Email:  [email protected] )

Mr NJ Elliott, c/o Penney Patel Law, P O Box 26344, Epsom, Auckland 1344 (Email: [email protected] )

WALDRON AND ANOR V HOWICK FUNERAL HOME  HC AK CIV-2010-404-005369  17 August 2010

Introduction

[1]      Late yesterday the applicants filed an application for urgent orders to stop the funeral today of John Peter Scanlan who died on 28 July at the age of 89.  The first named applicant is the executrix of what is believed to be Mr Scanlan’s last will. The application, made without notice, was referred to me late yesterday.  I made a direction as follows:

1I am not prepared to make orders on a without notice basis.  There is no explanation for the delay in applying and there is insufficient information to enable me to conclude that there is any prejudice if the matter proceeds on notice.

2        The proceeding is to be listed before me at 10.00 a.m. on 17 August

2010.

[2]      I have heard the applicants and I have also had the benefit of submissions from Mr Elliott who has been instructed by the next of kin of the deceased, members of the extended O’Sullivan family.  Although the intituling may suggest otherwise, Mr Elliott is not representing the named defendant, which is the business name of the funeral director currently entrusted with the deceased’s body and the funeral arrangements.  (It is not clear whether the defendant is a legal entity and it appears not  to  have  been  served.)    The  only  person  served  with  the  proceedings  was Mr Elliott.

Background

[3]      In the time available it is not possible for me to give more than a truncated account  of  the  background.    I  was  informed  by  Mr  Elliott  from  the  bar,  and Ms Charmaine  Waldron  confirmed,  that  a  detailed  proposal  for  the  funeral  was prepared by members of the O’Sullivan family and sent to Ms Waldron by courier on

2 August.   It had been sent as an attachment to an email at an earlier date but Ms Waldron  was  unwilling  to  open  the  attachment.    In  response  to  that  email Ms Waldron asked a series of questions, including questions as to the circumstances in which Mr Scanlan had died and where his body was being held.

[4]      Ms Waldron’s response to the detailed funeral proposal put forward on behalf of the O’Sullivan family was to request that  Mr Scanlan’s body be released to another funeral director, Dil’s Funeral Services, who operate in the North Shore area. There was no indication as to what funeral arrangements would follow.

[5]      In the circumstances, the O’Sullivan family felt that they had no real option but to proceed with the funeral in accordance with the proposal that had been earlier sent.   Two family members have travelled to New Zealand for the funeral.   A nephew of Mr Scanlan’s has come from Ireland; a great niece has travelled from Melbourne.

[6]      On 12 August, Ms Waldron was advised that the funeral would be held today in the Our Lady Star of the Sea Church at Howick.  I am informed that Mr Scanlan spent the last years of his life living in the Howick area and, as I understand it, worshipping at that church.   In all respects it appears that the funeral has been arranged in accordance with the rites of the Roman Catholic Church.  The proposal is that Mr Scanlan’s body will be cremated and his ashes taken to his ancestral home in Ireland.  However, I am informed that the family is receptive to any proposal to divide the ashes.

Discussion

[7]      The proceedings are highly irregular in form.  I have been prepared to act on them because of the importance and urgency of the relief sought.  The irregularities include:

a)        There is no statement of claim or notice of proceeding.

b)As earlier mentioned, the defendant appears not to be a legal entity and has not been served.

c)        There is no undertaking as to damages.

d)It is clear, even on the face of the documents (and confirmed by Mr Elliott)  that  there  has  not  been  full  disclosure  of  relevant communications.

[8]      The law is clear that the executor has the right to possession of the body against all other persons and, as a general rule, the executor or executrix is entitled to make the final decisions as to funeral arrangements: Clarke v Takamore.[1]It does not follow, however, that in circumstances such as the present the Court should grant relief to enable an executrix to belatedly intervene to prevent the execution of what seems to be perfectly orthodox funeral arrangement at the eleventh hour and without

putting forward any concrete alternative proposal.

[1] Clarke v Takamore [2010] 2 NZLR 525.

[9]      The balance of convenience and the interests of justice clearly weigh against the grant of the relief sought by the applicants who, among other things, seek orders that no funeral arrangements are carried out unless authorised by Ms Charmaine Waldron and for the release of the deceased’s body to Dil’s Funeral Services.

[10]     I  am  not  prepared  to  make  those  orders  in  the  circumstances.     The proceedings are not properly constituted.  The application is made at the last minute; there is no explanation for the delay.  Costs that have been incurred by members of the O’Sullivan family in attending New Zealand for the funeral and, no doubt, if the funeral were cancelled there would be irretrievable losses.  There is no undertaking as to damages.   I cannot overlook either that it is now almost three weeks since Mr Scanlan died.  He is entitled to the dignity of a funeral without further delay.

[11]   The applicants have also expressed concern as to whether the required formalities  have  been  observed  following  the  death  of  the  deceased  and  seek ancillary orders requiring the production of a coroner’s report and associated medical documentation.   I have no reason to think that the steps required by law were not taken following Mr Scanlan’s death.   Nor do I have any reason to doubt that the appropriate  documentation  will  be  available  and  produced  on  request  to  the executrix.

[12]    Although I make no order on the issue, having regard to the uncertain jurisdictional basis on which I am proceeding, I would encourage members of the deceased’s family to engage with the executrix for the purpose of reaching some agreement  as  to  the  way in  which  the  deceased’s  ashes  might  appropriately be disposed of.  A sensible arrangement may well involve dividing the ashes so that one half can be taken back to Ireland and the other half disposed of here.

Result

[13]     The application is dismissed.   In the circumstances, I make no order as to costs.