Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.
May I ask if your brother made a will? If so was anything left to his partner under the same? Am I correct that they were not married?
Could you kindly advise precisely on what basis the grave was put into your brothers partners name at the time please? Was this done with the consent of any family member?
Is there something specific that your parents wish to do with the grave plot that is difficult due to the same being registered in the name of a third party or is the issue more one of principle?
When we arranged my brothers funeral the funeral director asked whose name should the plot go in. As the partner said she wanted to be buried with my brother she had the plot put in her name. My father and I were present at the time but as my brother was only 38 when he died suddenly we were all in a state of shock and didn't understand the implications of what was happening. As time has gone on the grave has only been looked after by my mother and she has been going to the grave every 3 weeks to place fresh flowers for the last 7 years. We were not consulted by the partners family when the grave was opened up for her to be buried there and no we have found out that the grave is her daughters name who is no relation to my brother. Ideally my mother would like the title in her name but at the very least want it in the name of the daughter who has her mother and father buried there. The plot was originally purchased with my brothers money, his partner never paid for the plot. My niece whose name we think it should be in was never consulted about the grave when the funeral was arranged.
Thanks - just reviewing your post...
Thank you. May I ask if your brother made a will? If so was anything left to his partner under the same? Am I correct that they were not married?
No my brother didn't leave a will however his partner received his death in service benefits and a lump sum from his pension. There was a protected rights pension that couldnt be paid to his partner as they were not married so that went into his estate and was placed in trust for his daughter as per the rules of intestacy.
Thank you. Finally did he have just one daughter?
Yes he did.
Thank you. As you will be aware the intestacy rules provide in these circumstances that all your brothers assets that were not held in trust with an alternative beneficiary (as was likely the case with his pension from what you say) would pass to his daughter. If the funeral was paid for using his monies which included the grave plot and this can be proved then title to the grave rests with his daughter in law. May I ask who acted as your brothers administrator for his estate if you recall?
Sorry there is no daughter in law as he was not married. Do you mean that the title rests with the partners daughter or his daughter who was 12 at the time of his death incidentally?
My father was the administrator of his estate.
Sorry we are at slight cross purposes - my faultl I had not noticed the double meaning. I mean to say IN LAW, title rests with his daughter. I was not referring to a daughter-in-law. I apologise for the misunderstanding.
So how do we go about changing this if the other daughter does not give permission? Are the funeral directors at fault if they did not do this as per the law?
Thanks. Your father as your brothers administrator had a duty to ensure that the grave as an asset was placed in your brothers daughters name. She has a right to that asset. You mention your father was present when the title was placed in another name. If he agreed to this, then title transfers legally to the individual he consent to as he has legal authority to transfer the title. If he did not agree, then title does not transfer and he can consider a court application to correct the position.
Do you consider with your memory of events that he did consent to the transfer of title?
As you can imagine it was a very difficult time and very upsetting at the funeral directors especially arranging a funeral for your child! He knew that the partner wanted to be buried with his son but never understood the implications of it all. Does the partners family have no say in the grave whatsoever now that she is buried there?
Of course I quite understand. If your father is of the view that he did not give consent for the legal title to be transferred into your brothers partners name then he can seek to challenge this if necessary in court.
However this would require him to be certain that he did not consent to this. If he is vague on the point there would be questionable value in mounting a legal claim. Accordingly your father would want to be sure of his statement that he did not give consent and that he was not aware until recently that the title had been incorrectly placed in your brothers daughters name.
This is the point, we did not know the law at the time, the funeral director did not explain to us that the grave should be in his daughters name by law. Had we been advised this at the time then he would have not given his consent to have the title put in ther partners name, he would have kept it as per the law.
If he can be then the first step is to contact the partners daughter and advise that the grave title was placed into her mothers name without authority from your brothers administrator (your father) and request her consent for the title to be rectified. You may also want to reassure her that the family will of course work with her in respect of any wishes she may have - being sensitive to the fact that she will consider that her mother is buried there to.
If she does not agree then your father can consider an application to the county court claiming that he did not consent to the title being placed in your brothers daughters name and requesting the court to make an order that the title is transferred into his name as administrator or your brothers daughter as beneficiary of your brothers estate. He will need to be clear in his statements that he did not cosent to the transfer into partners name and put the partners daughter to specific proof as to evidence of his consent if she disputes his contention. She would need to show something signed by your father consenting to the transfer if your father denies consenting.
If your father decides to issue a court application he can do so using from N244
There is nothing in writing from my father consenting to this. As I say it was all done very quickly when the funeral was arranged and at no point was it explained to us what the law was regarding the grave. Im not sure if my parents will pursue this as it is very distressing. Unfortunately they have not been considered nor notified when the grave was opened and my mother does not even know where her son's headstone is! All very upsetting and something any parent should never experience.
Providing he did not sign anything and is clear that he did not consent to title being placed in your brothers partners name then he has the makings of a claim to seek rectification of the matter as above. Of course this may not be necessary if daughter cooperates. It may be that you could consider speaking to the daughter as an intermediary to explain your parents feelings to see if you can broker a compromise without the need for court - after all as things stand both her mother and your parents son are buried there and so there may be some common interest in terms of up keep and managment of the grave and it may be that their positions are not too far apart in this respect.
What would the likely cost be in we did make a court application?
I agree completely that court proceedings are not something a parent or for that matter a daughter is likely to want to undertake lightly particularly when considering the memory of a loved one.
£175 to issue the claim. Costs would usually be payable by the loser.
What would the costs likely to be if you lost?
If it proceeded to a hearing there would likely be an allocation fee and hearing fees of a further just over £700. In addition the successful party could also seek to claim some limited legal costs if retaining a solicitor capped at a few hundred pounds and expenses in attending the hearing. This could take the total bill to £1200-1500 potentially.
However the burden of proof would be upon daugther to show how she obtained title. The only legal way she can have done so is by showing your father gifted the same to your brothers partner.
there is definitely no proof or anything in writing consenting unless there was something signed at the funeral directors eg a form giving title?
Providing he did not sign anything to this effect and providing he is clear that he did not consent and did not realise that title had been transferred then he has the makings of a reasonable claim in this respect.
He may wish to contact the undertakers to firm up whether he signed anything there before going further to be sure.
What he have to sign anything at the funeral directors?
Sorry could you kindly clarify your last question?
Can we pursue a claim against the funeral directors in not giving as the appropriate advice at the time?
That would be difficult as the funeral directors are not legal advisors and owe a very limited duty of care to your father in respect to legal matters.
Ok thanks for all your advice.
A pleasure. If I can assist any further as the situation develops please do not hesitate to revert to me
I hope you find a amicable resolution to the predicament which does not place your parents under any distress
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