Wifes reserved burial plot has another interment placed in it in error-help

[peter p]

My Wife purchased a burial plot in her local cemetery in 1987 with a 100 year "lease". It was purchased because it was to the head of her parents grave.
On Sunday we visited her parents grave only to discover a wooden cross erected on the plot she owns.
The cemetery is Council owned but they have outsourced the day to day running of it. The council have admitted they failed to register my Wifes ownership of the plot (for whatever reason) on the master plan and therefore the company to whom they outsource the day to day running and administration to, correct though, from the master plan, that the plot was available for use and have used it.
It is a burial plot and we have been informed that it is ashes that have been placed in it.
The council are still investigating the situation in an attempt to resolve the mix up but have concluded there last e mail by saying "I can confirm that we will fully reimburse the original cost of reserving the plot but obviously the most important thing at this point is coming up with an acceptable and legal solution all round."
While we have sympathy with the family whose relative has been interned in my wife's plot surely legally they have to remove the internment and return the plot to my wife's exclusive use as it says on her documents for the plot.
Do we have the legal right to insist that the local authority remove this person ashes from her burial plot?
My wife is 74 and this is not helping her well being, we would appreciate any advice. Thank you.

[peter p]

Re: Wifes reserved burial plot has another interment placed in it in error-help

Hi again
Things have moved a bit further forward but could someone explain to what the local authority are on about please.
The LA have said... A licence has to be obtained to remove the ashes, from the Ministry of Justice (under section 25 of the Burial Act 1857). We have contacted the Institute of Cemetery & Crematorium Management regarding the possibility of the exhumation and have been advised it is unlikely the right to exhume will be granted in these circumstances.

I understand the granting of a licence part but what has the Institute of Cemetery & Crematorium Management have to do with this, does anyone know?

[des8]

Re: Wifes reserved burial plot has another interment placed in it in error-help

The institute have nothing to do with the application.
The LA have obviously cast about looking for advice, and that is what they got.

This should not prevent you completing th.e applicaton form, which also needs to be completed by the LA (IMO at no cost to you).

A bigger difficulty might be the non agreement of the other family involved.
Has anyone approached them and what was their reaction?

The application form is here: https://www.gov.uk/apply-for-an-exhumation-licence

[seduraed]

Re: Wifes reserved burial plot has another interment placed in it in error-help

The country il who are at fault here need to sort it and a disinterment order can be obtained through the council at their expense. The burial is a tort of trespass.
Is your wife planning on cremation when the time comes? If so could her remains be buried in the same plot as her parents?

[peter p]

Re: Wifes reserved burial plot has another interment placed in it in error-help

The institute have nothing to do with the application.
The LA have obviously cast about looking for advice, and that is what they got.

This should not prevent you completing th.e applicaton form, which also needs to be completed by the LA (IMO at no cost to you).

A bigger difficulty might be the non agreement of the other family involved.
Has anyone approached them and what was their reaction?

The application form is here: https://www.gov.uk/apply-for-an-exhumation-licence

des8, after re reading the LA e mail again the penny has dropped and I agree they are saying that the Institute have advised them the application would be unlikely to be granted.

I have looked at the form you linked too and my problem is that I have very little of the information they ask for. We obviously know the name of the interned person and a little research through local obituaries columns have provided us with a little more about the family. We know the individual passed in early 2015 and the ashes have only been placed in the plot in the last 3 months but we know nothing more.

We have extreme sympathy with the relatives over the situation and dont want to inflame the situation with them. If the relatives become upset over this we would prefer the guilty party, being the LA, to have to deal with any fury that may be vented as we are both innocent parties in this error. If the location of the plot was not so special we would accept the LA's offer of another plot cost free without hesitation.

With regard to the application to The Ministry of Justice I have thought about writing to them explaining the situation with as much detail as possible to support our case. I dont trust the LA to plead our case in much detail and feel we need to put our side of the story, what do you think?

[peter p]

Re: Wifes reserved burial plot has another interment placed in it in error-help

The country il who are at fault here need to sort it and a disinterment order can be obtained through the council at their expense. The burial is a tort of trespass.
Is your wife planning on cremation when the time comes? If so could her remains be buried in the same plot as her parents?

My wife wants burial seduraed. I feel the LA a trying to get off the hook. They have said that when my wife purchased the plot 29 years ago it was not marked on the master plan. I dont believe that the plot would not have gone unused for that length of time while the cemetery filled up around it.
We are certain that this is an error by the contractor now running the cemetery and the LA are covering up for them. The press have regularly reported on problems, the most recent being that grave was still being dug when the funeral party arrived.

The LA have offered another plot with no cost, offered a full refund and a "free" plot and they now say,
"Alternatively, we have been told that there is actually room for an additional burial to take place within the existing grave of XXXXX parents, the XXXX plot, A240. I don’t know why this was not offered to your wife at the time, practices have changed over the years, but I am able to offer you this as an alternative. Given XXXXX wish to be buried with her parents I wonder if this might be the preferred solution. There will of course be no charge and we will reimburse you for the original costs.

My wifes parents plot was for 2 burials and now they say it will take 3 burials. I dont trust them to honour this at a later date or even if this is true, and in any case where do I go when my time comes?
As I have said before we feel awful for the other family and that makes it very difficult for us to be "hard nosed" about this but as you say it is trespass in a plot that my wife has had exclusive right of burial since 1987.
Any opinion/advice re writing to The Ministry of Justice to support a case for removal of the ashes would be apreciated.

[des8]

Re: Wifes reserved burial plot has another interment placed in it in error-help

Your primary objective is to regain possession of the plot.
To do this that application form will have to be completed.
I would suggest you download a copy, and complete it as far as you can.
There is a section (additional information) which allows you to put across your side of the matter, so it is not just the LA not pleading your case.

If you haven't already done so, I would suggest you approach your local councillor for help, before submitting the form to the council.
In a conversation with him you could let him know (nicely, not aggressively!!) that as the council don't seem to take your complaint seriously (after all why should you compromise) you are considering legal action over the trespass as per Sedurae implied suggestion.
Your councillor could then be given the competed application (keep a copy) to pass on to the relevant department.

[peter p]

Re: Wifes reserved burial plot has another interment placed in it in error-help

des8, the LA are submitting a completed form to the Ministry of Justice admitting their error and asking for a licence to remove the internment.
It also seems the form is to be submitted to The Ministry of Justice when completed.
I think we will complete one anyway and explain the circumstances supported by a copy of the deed granted in 1987 and copy it to our local councillor.
Before doing so I will get in contact with him and see how receptive he is to the situation. I know several of our LA councillors personally so may have a an off record chat with them and see what they say.
Thanks for your pointers.

[peter p]

Re: Wifes reserved burial plot has another interment placed in it in error-help

Update
Local and district councillors contacted, all of whom have called for the LA to explain themselves as they to think there is a cover up going on.
I have now been contacted by my MP and he has written to the MoJ in support of our situation and called on LA to investigate the matter.
Formal complaint put into LA Chief Executive,
FoI request made to LA re who was registered as owning what during a certain date period, hope to prove LA are covering up someone else mistake.
Form filled in as best as possible and sent with covering letter to MoJ who have replied but require and are waiting for a fully completed application form from LA with other parties information on.
And a Solicitor that is advising and willing to do the "early" work at "mates rates" if required.
What more can I do? Now just have to wait and see I suppose.

[des8]

Re: Wifes reserved burial plot has another interment placed in it in error-help

Seems things are moving, and situation will be sorted soon.
Hopefully your wife will not be needing the plot for several years to come

[peter p]

Re: Wifes reserved burial plot has another interment placed in it in error-help

Seems things are moving, and situation will be sorted soon.
Hopefully your wife will not be needing the plot for several years to come

I wish they would move faster des8 my wife is so upset over this I have daily tears and it makes me so angry that I have found it difficult to contain myself in the correspondence I am sending out.
Been promised a slap up meal when its all over. That and hopefully many many more years together makes it all worth it.

[peter p]

Re: Wifes reserved burial plot has another interment placed in it in error-help

Sorry to resurrect this thread but things are not a simple as first suggested. Local council have "suddenly" discovered the ground is consecrated and therefore permission from the area diocese is required and this is now in hand.
Have just got a letter from the Diocese asking us to provide a written submission to be with them by a date in February 2017.
This may sound an absolutely stupid question but, does this mean we write to them with our reasons for wanting the ashes, placed in our plot because of an admin error by the council, removed.
Can anyone give me an idea on the format this should take, the family have had a heavy involvement over 3 generations with the town and it church especially, do we go into great detail or keep it simple?
I dont want to get this wrong as so much is riding on the hope of getting this plot back for our use.

[des8]

Re: Wifes reserved burial plot has another interment placed in it in error-help

Whilst the Church does not generally grant faculties for exhumation, in this instance I think you might well be successful.

All quotes below are from Court of Arches re Blagdon Cemetery 16th April 2002.

1) the request stems from a mistake by the administrators of the cemetery, who sholud be the ones making the request.

" We agree with the Chancery Court of York that a mistake as to thelocation of a grave can be a ground upon which a faculty forexhumation may be granted."

"Sometimes genuine mistakes do occur, for example, a burial maytake place in the wrong burial plot in a cemetery or in a spacereserved for someone else in a churchyard. In such cases it may bethose responsible for the cemetery or churchyard who apply for afaculty to exhume the remains from the wrong burial plot or grave.Faculties can in these circumstances readily be granted, becausethey amount to correction of an error in administration rather thanbeing an exception to the presumption of permanence,"

2)The adverse effect this matter is having on the mental health of your wife. If you can obtain a letter confirming this from her doctor it would be of help

"Any medical reasons relied upon by a petitioner would have to bevery powerful indeed to create an exception to the norm ofpermanence, for example, serious psychiatric or psychologicalproblems where medical evidence demonstrates a link between thatmedical condition and the question of location of the grave"

3) iT would be an advantage if you can get confirmation that the remains to be disinterred will be reburied in consecrated land

So yes. in response to your query, a simple letter, setting out what has happened, the effect on your wife, the fact that it was an error by administrators, should do the trick.
Refer to the Blagdon Cemetery case using the quotes

[peter p]

Re: Wifes reserved burial plot has another interment placed in it in error-help

des8
thanks for the reply, our Diocese web page says, under the section exhumations,

"The Church regards burial as final, and so a Faculty will not normally be granted to authorise an exhumation, except in exceptional circumstances, for example, where a body has accidentally been buried in a grave already reserved for someone else, or in any other special circumstances which the Chancellor of the Diocese considers justify a departure from the general rule"

That is exactly our circumstances and it is ashes rather than a body so I am hopeful.
The interned remains will be relocated in the same cemetery as far as we know.
Thanks for your help and guidance on this matter des8, hope you have a good Christmas.

[peter p]

Re: Wifes reserved burial plot has another interment placed in it in error-help

So this is still ongoing and from my point of view been a great learning experience at the cost of a Solicitor & Barrister to the tune of over £4,000. Have been assured that cost will be awarded against another party.
The case still needs to go before the Chancellor for the Diocese for determination, hopefully quite quickly now all submissions and objections are in. I can then post the final outcome.
As I said been a real interesting learning curve on a subject that causes a lot of heartache and distress to both parties and there is very little, beside previous cases, information available.
This site has been very helpful to me on several occasions and I would like to "give something back". I am therefore offering to type up the case from start to finish in a short as possible version for a moderator to review and if they consider it worthwhile post it as a "sticky", or whatever you wish to call it, for future reference to anyone else who may find themselves in a similar situation. If someone wants to take up this offer just let me know.