The petitioner had been granted a faculty for the exhumation of the cremated remains of his late brother, so that they could be re-interred in an existing family grave in Northern Ireland. The exhumation had been undertaken, and the ashes given to the petitioner; but they had not yet been re-interred. At that point, it emerged that other members of the family were unaware of the exhumation and were vehemently opposed to it. One, who asserted that she was the deceased’s next of kin, was invited to apply to set aside the faculty, which she did.

The court decided, in the absence of decided authority, that a faculty may be set aside where it was issued as a result of a material misrepresentation on the part of the petitioner. The petitioner had asserted, when procuring the faculty, that he did not know the current location of the deceased’s other siblings; there were none living in the area where the deceased was buried; and he had not been in contact with them for 14 years. The court considered the evidence and concluded that the petitioner had been ‘highly economical with the truth’ concerning his siblings in his petition. Had the court been aware of the true position, it is likely that the court would have held a contested hearing before deciding the petition.

There was considerable force in the view that the petitioner should not be allowed to benefit from his own lack of candour. However, looking at the realities, the remains had been lawfully exhumed; and either they would be reinterred in Northern Ireland in implementation of the faculty, or they would be returned to the grave wherefrom they had been exhumed. Not without hesitation, the court dismissed the application to set aside the faculty, determining that it should instead be fully implemented. There was no reliable evidence as to the deceased’s own wishes; and objectively, the family grave in a Roman Catholic cemetery in Northern Ireland where he had been baptised and confirmed was a more appropriate final resting place than a churchyard which had been selected simply because of its proximity to the petitioner’s home at the time. Further, while the applicant had alleged that the deceased had no relationship with his father (interred in the family grave in Northern Ireland) because he had witnessed his father beating his mother many times, the petitioner denied this; and there was (unlike in Re an application to inter cremated remains [2024] ECC Oxf 2, noted above) no cogent evidence to support the allegation. Finally, there was no possibility of recreating the deceased’s grave space in the present churchyard, as it had contained many elements which violated the Churchyard Regulations and the court could not be seen to actively permit or condone such contraventions.

The application to set aside the faculty was dismissed. However, any further steps by the petitioner to implement the faculty were prohibited for 28 days, subject to any further order of the court.