The judgement in the Ibuna/Arroyo case in England over possession of Ignacio "Iggy" Arroyo's body has been officially released today.

Mr Justice Peter Smith as presiding judge in the High Court in London gave his order in open court on the 20th February that Grace Ibuna and Bernadina Arroyo should handle the movement of Iggy's body from the UK to the Philippines with his reasons to be given later stating "Due to the urgency of the matter I did not feel it appropriate to delay the result pending delivery of this judgment". This was done this morning and is reproduced in full below. ?

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?Mr Justice Peter Smith, High Court judge in the London case over the remains of Iggy Arroyo?

There is a clear criticism of Alicia "Aleli" Arroyo, and by association that of her lawyer Lorna Kapunan, for not attending the hearing to fight Aleli's corner, instead using the media in Manila 8,000 miles away as well as trying to have a similar court case in Quezon City. Judge Smith comments on this: "Mrs Arroyo was aware of the proceedings from the start but deliberately chose not to participate in them."

Judge Smith gives a reference to this when going over the evidence of Professor Ed Vincent Albano, given by video link from Manila:?

"As I have said above there is evidence of his wishes provided by the Claimants. Mr Albano referred to Mrs Arroyo's reference in the Philippine proceedings to article 305 which sets out the order of priority as regards the arrangements for funerals for a relative. Reference made in that article to article 294 which sets out an order for the claim for support and the spouse of the deceased has the first and prior claim. Nevertheless Mr Albano is of the view and this was his honest professional opinion that that provision should not be read in a vacuum and should be read subject to article 307 which accordingly provides in his opinion to the fact that the deceased's wishes should have paramountcy." ?

The Judge further continues in another paragragh:?

"Mrs Arroyo has not produced any evidence in this action. That as I have said was her deliberate decision. In her proceedings in the Philippines she does not appear to be basing her desire to take possession of Congressman Arroyo's body on the basis that that is what he would have wished to happen. Her claim appears to be based on legal submissions that as the wife of Congressman Arroyo she has the legal right to custody of the body. It is regrettable that she chose not to adduce that evidence to enable me to adjudicate on it. That was her decision." ?

The rest of the judgement clearly is in the favor of Grace Ibuna and Bernadina Arroyo, this has to be as the overwhelming evidence was from the claimant's side, with none coming from the defendant, Aleli Arroyo. There was evidence from the second defendant, the undertakers JH Kenyon, but as Judge Smith clearly states, they were the innocent party in this case. He refers to a letter from Lorna Kapunan as Aleli's lawyer: "The letter went on to assert that the Second Defendants would become parties to Ms Ibuna's alleged criminal and civil wrongs and would thus be liable as well.

The Second Defendants were thus innocently caught up in a dispute between Ms Ibuna and Mrs Arroyo as to the right to possession of the body of Congressman Arroyo."

Judge Smith made clear on at least two occasions in court that the London undertakers should not suffer financially because of this dispute.

Perusal of the whole judgement, which is in a typically dry, polite and legal manner, shows the reasons that Grace Ibuna and Bernadina Arroyo won in the High Court in London; by not appearing, Aleli Arroyo clearly threw away everything.?

Read All The Previous Stories On The Arroyo Case Here?? ?

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IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

1. Peter Smith J :

   INTRODUCTION

2. This judgment arises out of a 1 day action I heard on 20^th February 2012. The action concerns the competing claims as to the right to take possession of the body of Ignacio Arroyo ("Congressman Arroyo") to enable it to be buried. Congressman Arroyo was a congressman of the Negros Occidental Province of the Philippines.

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3. He was resident in both the Philippines and California. He was domiciled in the Philippines.

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4. He had been seriously ill and in October 2011 (accompanied by his partner the First Claimant Grace Ibuna ("Ms Ibuna")) attended the UK for treatment for liver problems. He had apparently been attending the UK for treatment since 2006. However his condition deteriorated drastically in January 2012 and he died at the London Clinic 20 Devonshire Place London W1G 6BW on 26^th January 2012.

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5. After 2 interim applications before me on 3^rd and 10^th February respectively I directed the action be listed for 20^th February 2012 with directions to accommodate that and continued an injunction which I first granted on 3^rd February 2012 against the Defendants (as set out below).

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6. At the conclusion of the hearing I indicated that I would accede to the Claimants' application and grant them limited Letters of Administration to take possession of the body of Congressman Arroyo to enable it to be transported to the Philippines and be buried in accordance with the wishes expressed by him as set out in the evidence. I indicated that I would give reasons subsequently and I set out those reasons in this judgment. Due to the urgency of the matter I did not feel it appropriate to delay the result pending delivery of this judgment.

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   THE PARTIES

7. Ms Ibuna the First Claimant was the partner of the deceased. They were not married but on her evidence she first met Congressman Arroyo in 2002, started a relationship in 2006 and lived together thereafter until his death.

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8. The Second Claimant is one of the daughters of Congressman Arroyo's first wife Marlene Jacinto. His other daughter (Bianca Marie Arroyo ("Bianca")) gave evidence before me in addition to Ms Ibuna. The Second Claimant Bernardina Arroyo Tantoco ("Bernardina") gave evidence via video link.

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9. Congressman Arroyo's first marriage was apparently annulled although there might be a dispute about that under Philippine law. I will say nothing about that because it is not for consideration by me.

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10. Believing his first marriage was annulled he married the First Defendant Alicia Rita Morales Arroyo. Bernardina lives in the Philippines Bianca lives in the United States. Congressman Arroyo married Mrs Arroyo (the First Defendant) sometime in the early 1990's I believe.

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11. He separated from her in 2005 and has not lived with her since. He commenced annulment proceedings in the Philippines in 2006 but by the time of his death they had not been determined.

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12. The expert who gave evidence before me as to Philippine law Ed Vincent Albano stated that according to Philippine law the annulment proceedings abated with the death of Congressman Arroyo. Therefore it follows that Mrs Arroyo (assuming the doubts over the annulment of the first marriage are decided in her favour) is the widow of Congressman Arroyo.

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    ORIGINS OF DISPUTE

13. After Congressman Arroyo died Ms Ibuna registered his death and obtained a copy of his death certificate. She was able to do this because Congressman Arroyo had nominated her as his next of kin at the London Clinic describing her as his partner.

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14. After she had registered his death the body was sent to the Second Defendants at their premises 49 Marloes Road Kensington London W8 6LA. They are funeral undertakers. They were provided with the death certificate, original passport and diplomatic passport of Congressman Arroyo. They were put in funds by Ms Ibuna for the purposes of embalming. They subsequently applied for a certificate of repatriation at the Philippine Embassy in London. Ms Ibuna provided them with a name of a consignee (Arlington Funeral Homes) in the Philippines.

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15. Subsequent to that however the Philippine Embassy contacted Ms Ibuna and insisted that the consignee was instead to be the Loyola Funeral Homes. The Embassy refused to tell Ms Ibuna why it was changed.

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    INTERVENTION BY MRS ARROYO

16. Mrs Arroyo arrived in the United Kingdom on 1^st February 2012 to claim the remains of Congressman Arroyo and to bring them back to the Philippines herself. Prior to her arrival she had issued various statements to the press in the Philippines that it was her intention to take custody of Congressman Arroyo's remains and accompany them on a flight to the Philippines.

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17. Thus a dispute ensued. On 2^nd February 2012 Mrs Arroyo's Filipino Solicitors wrote to the Second Defendants setting out her position. That letter asserted that under Philippine law as the legal wife and next of kin she had the duty and right to make funeral arrangements. The letter continued that Ms Ibuna was not Congressman Arroyo's legal wife (which is correct), that she was not authorised to give instructions nor to make any repatriation arrangements and that under Philippine law her acts constituted falsification, false representation and abuse of civil status. It was also stated that her giving of instructions to cut the life support of Congressman Arroyo (this was not debated before me) constituted a criminal offence. The letter went on to assert that the Second Defendants would become parties to Ms Ibuna's alleged criminal and civil wrongs and would thus be liable as well.

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18. The Second Defendants were thus innocently caught up in a dispute between Ms Ibuna and Mrs Arroyo as to the right to possession of the body of Congressman Arroyo.

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    PREVIOUS APPLICATIONS

19. In view of the threatened actions of Mrs Arroyo Ms Ibuna applied ex parte before me in the Interims Court on 3^rd February 2012. On that day I granted an ex parte injunction restraining the Second Defendant from disposing of Congressman Arroyo's body and from delivering the same up to any person. I granted permission to serve Mrs Arroyo with a copy of the order via her solicitors in the Philippines who had written to the Second Defendants.

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20. The return date for that injunction was 10^th February 2012 when I gave directions for a trial.

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21. Mrs Arroyo was aware of the proceedings from the start but deliberately chose not to participate in them. Instead she issued her own proceedings in the Philippines Regional Trial Court in Quezon City on 13^th February 2012. Several hearings have taken place in those proceedings. By the proceedings she seeks against the various Respondents (including Ms Ibuna) mandatory relief requiring them to hand over the remains of Congressman Arroyo to Mrs Arroyo. Although evidence has been taken that Court has not yet delivered any judgment.

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    REASON FOR THE DISPUTE

22. I refer to Ms Ibuna's witness statement dated 17^th February 2012 where she sets out what she proposes to do with the remains of Congressman Arroyo. As a Congressman it is a tradition and accepted practice in the Philippines that his body would lie in state in Congress so everybody who wanted to would pay their last respects. Thereafter his body would be driven in a funeral cortege through the capital of Negros Occidental and would lie in state at Binal Bagan Negros Occidental and would be taken to 14 Badjao Street, La Vista Sub Division, Quezon for the wake followed by a funeral service at the Santa Maria Della Strada which is in walking distance. The significance of the address 14 Badjao Street is that it is the Congressman's family home. He told his daughter on several occasions that he wished to be buried in the family mausoleum in the North Cemetery in Manila where his mother is buried. He also stated his wish to have his wake in the ancestral family home at 14 Badjao Street where his grandparents' wakes were held. He told her on a number of occasions that he wished Ms Ibuna to make the funeral arrangements but that there was no change to his wishes as set out above.

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23. By contrast Mrs Arroyo (who has been estranged from Congressman Arroyo since 2006) has had no contact with him at all. It is apparently Mrs Arroyo's desire to hold the wake at her home 17 Badjao Street where she lived with Congressman Arroyo. This is somewhat surprising because she had obtained orders excluding him from that property. According to the evidence of Bernardina she believes that Mrs Arroyo will not allow Ms Ibuna to attend the wake whereas Ms Ibuna is quite willing to allow Mrs Arroyo to attend the wake.

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24. This essentially is the difference between the two camps but of course it is a significant difference.

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    TESTAMENTARY DISPOSITIONS

25. Congressman Arroyo made a will in California on 27^th March 2009. I understand from the Claimants' evidence that the will is valid according to Californian law. By that will he first directed his executor to pay his just debts, last illness and burial expenses. He declared that he was a single person and that he had 3 children living namely, Bernardina, Bianca and Alicia Lourdes Arroyo the daughter of the First Defendant. He gave the residue of his estate to the successor trustee of the trust designated as the "the Ignacio Arroyo Living Trust" which was established earlier the same day and directed the residue of his estate should be added to, administered and distributed as part of that trust according to the terms thereof from the date of his death. He appointed Bernardina as his executrix.

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    DECLARATION OF TRUST

26. The Declaration of Trust is an unusual document from an English trust lawyer's point of view. Congressman Arroyo is described as the trustee and he is also described as the trustor. It recites that the trustor had transferred and delivered to the trustee all his rights, title and interests in the property described in the schedule A attached. The items in schedule A are the ownership interests in Geograce Investments LLC. Under the terms of the trust the trustee after his death (article 1B) after payment of the last illness and funeral expenses pays the income for Ms Ibuna during her life and upon her death the balance is to be distributed between the 3 children equally.

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27. There is no mention of Mrs Arroyo in the trust document. By clause I it is declared that the trust has been accepted by the trustee in the state of California and its validity, construction and all rights shall be governed by the laws of that state.

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28. The attesting witnesses were Mr Liddell and Ms Chavez. Mr Liddell drew up the will and the other documents namely the declaration of trust and two other documents which I shall refer to in this judgment as the Durable Power of Attorney for Asset Management and the Healthcare Directive. All of the documents were executed on the same day 27^th March 2009. Mr Liddell in an email to the Claimants' former solicitors in this action intimated that he did not expect the will to be admitted to probate in California. The reason for that is that he does not expect there to be any other assets in California beyond those which were vested in Mr Arroyo's living trust.

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29. Nevertheless the will does give the executrix (namely the Second Claimant) as such executrix rights.

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    DURABLE POWER OF ATTORNEY

30. By this document Bernardina is appointed as Attorney in Fact for Asset Management. I am not clear in my mind as to the legal effect of this document and in particular I do not know whether it survives the death of Congressman Arroyo. However nothing turns on this document for the purposes of the present application.

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    ADVANCE HEALTHCARE DIRECTIVE

31. This is executed under Californian law and enables a person to nominate somebody else as agent to make healthcare decisions if the person is unable to. Ms Ibuna is appointed as Congressman Arroyo's first agent. The relevant provisions are to be found on page 3 as follows:-

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    "AGENT'S OBLIGATIONS:- My agent shall make healthcare decisions for me in accordance with this power of attorney for healthcare, any instructions I give in Part 2 of this form, and my other wishes to the extent known to my agent. To the extent my wishes are unknown, my agent shall make healthcare decisions for me in accordance with what my agent determines to be in my best interest. In determining my best interest, my agent shall consider my personal values to the extent known to my agent.

    AGENT'S POST DEATH AUTHORITY:- My agent is authorised to make anatomical gifts, authorise an autopsy and direct disposition of my remains, except as I state here or in Part 3 of this form."

32. Congressman Arroyo gave no other directions. Ms Ibuna acted under this power when she gave instructions for the autopsy and the delivery of Congressman Arroyo's body to the Second Defendants.

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33. It has not been explained to me what is the legal effect of this document in Californian law. Nevertheless it demonstrates an intent by Congressman Arroyo to clothe Ms Ibuna with the power of disposition of his body (in so far as he can lawfully do that). His wishes had been identified by Bernardina in her witness statement above mentioned. Those wishes are those which Bernardina and Ms Ibuna wish to carry out. There is no evidence to suggest Congressman Arroyo wished for his body to be disposed of by his estranged wife. Indeed I would find it quite extraordinary given the presence of the annulment proceedings and the restraining order she had obtained that he would want her to have any role in his funeral. His other daughter Bianca gave evidence before me and her witness statement supported that of the Claimant.

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34. Mrs Arroyo has not produced any evidence in this action. That as I have said was her deliberate decision. In her proceedings in the Philippines she does not appear to be basing her desire to take possession of Congressman Arroyo's body on the basis that that is what he would have wished to happen. Her claim appears to be based on legal submissions that as the wife of Congressman Arroyo she has the legal right to custody of the body. It is regrettable that she chose not to adduce that evidence to enable me to adjudicate on it. That was her decision.

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    EXPERT EVIDENCE

35. The Claimants produced expert evidence in the form of the expert report of Ed Vincent S Albano dated 16^th February 2012. In that report after setting out his instructions and various documents with which he was provided he sets out various factual matters which were provided and which were the premise for his report.

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36. He referred (paragraph 15) to the Healthcare Directive and indicated that the ultimate matter to be determined is the rightful person to direct the disposition. That was intended by Congressman Arroyo to be Ms Ibuna. Under article 307 of the Civil Code of the Philippines it is provided:-

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    "Art. 307. The funeral shall be in accordance with the expressed wishes of the deceased. In the absence of such expression, his religious beliefs or affiliation shall determine the funeral rights. In case of doubt, the form of the funeral shall be decided upon by the person obliged to make arrangements of the same after consulting the other members of the family."

37. As I have said above there is evidence of his wishes provided by the Claimants. Mr Albano referred to Mrs Arroyo's reference in the Philippine proceedings to article 305 which sets out the order of priority as regards the arrangements for funerals for a relative. Reference made in that article to article 294 which sets out an order for the claim for support and the spouse of the deceased has the first and prior claim. Nevertheless Mr Albano is of the view and this was his honest professional opinion that that provision should not be read in a vacuum and should be read subject to article 307 which accordingly provides in his opinion to the fact that the deceased's wishes should have paramountcy.

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38. Further he referred me to article 815 which provides as follows:-

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    "Art. 815. When a Filipino is in a foreign country he is authorised to make a Will in any other forms established by the law of the country in which he may be. Such Will may be probated in the Philippines."

39. Given that his conclusion is that the Californian Will should be given effect to, and that the express provisions of the Healthcare Directive are sufficient to establish the wishes of Congressman Arroyo to the exclusion of Mrs Arroyo. Finally the fact that there had been a petition for nullity, a separation and orders against Congressman Arroyo as regards the entry into the house proposed to be used for the wake by Mrs Arroyo, lead him inexorably to the conclusion (which he expressed in strong terms in paragraph 35 of his report) that Congressman Arroyo's body should be disposed of by the Claimants.

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    SUMMARY AS REGARDS LAW OF THE PHILIPPINES

40. It seems to me clear on that evidence that the Californian Will is effective in the Philippines appointing Bernardina as executrix. She is willing to allow Ms Ibuna to dispose of Congressman Arroyo's body as she wishes under the Healthcare Directive. Those two documents coupled with the live evidence I have received demonstrate that Congressman Arroyo's wishes would be to be buried as the Claimants suggest and not as the First Defendant would suggest in her proceedings in the Philippines.

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    POSITION OF THE PHILIPPINE CONSULATE

41. As I have said above the Consulate changed the consignee of the body from that of the one proposed by Ms Ibuna. However her solicitor gave evidence before me on oath that she had had discussions with the Consulate. Having spoken to the Deputy he told her that the Consul would respect the decision of this court as regards the disposal of Congressman Arroyo's body. Given that evidence, I am entitled to assume that they will not seek to challenge the consignment.

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    EFFECT IN THIS COUNTRY

42. The Claimants come before the court as someone identified by Congressman Arroyo as having the right to dispose of his body and as the executrix under the only will that has been put before me. That will is not challenged as regards the validity according to Californian law. According to the evidence of Mr Albano it would be recognised in the Philippines.

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43. I should say in passing that the Philippines like a lot of civil jurisdictions has express provisions dealing with the rights of relatives to participate in the estate of a deceased person not withstanding the provisions of his will. It is set out in section 5 of the Civil Code "Legitime". That appears to give rights to Mrs Arroyo if she is his wife. Those provisions Mr Albano told me, are applicable to all aspects of somebody dying domiciled in the Philippines throughout the world. I am not concerned with the assets and the entitlement of persons to those assets. I do not know whether the parties will become embroiled in litigation over that. There are a number of issues. First there is the question of what assets passed under the Declaration of Trust as opposed to the will. There is the question as to whether or not the assets that passed under the trust can be subject to the Legitime claim. There will be the question of whether or not Congressman Arroyo had any other and if so what assets and whether or not they are subject to the Legitime claim. Bernardina acknowledged that as executrix she would have to administer the estate of Congressman Arroyo her father, according to the various rights that can be established by Claimants against it. I do not propose to say anything more because the only issue before me is the possession of the body.

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    ENGLISH LAW

44. As the body is in England it seems to me necessary to consider how the English law approaches this problem.

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    POSSESSION OF THE BODY

45. A recent starting point is the decision of Hale J as she then was in Buchanan v Milton [1999] 2 FLR 844 at paragraph 845H as follows:-

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    "The law

    There is no right of ownership in a dead body. However, there is a duty at common law to arrange for its proper disposal. This duty falls primarily upon the personal representatives of the deceased (see Williams v Williams (1881) 20 ChD 659; Rees v Hughes [1946] KB 517). An executor appointed by will is entitled to obtain possession of the body for that purpose (see Sharp v Lush (1879) 10 ChD 468, 472; Dobson v North Tyneside Health Authority and Another [1997] 1 FLR 598, 602, obiter) even before the grant of probate. Where there is no executor, that same duty falls upon the administrators of the estate, but they may not be able to obtain an injunction for delivery of the body before the grant of letters of administration (see Dobson). Certainly in this case, the persons primarily entitled to such a grant did not secure delivery of the body and had to apply for a grant. Technically, therefore, this case is about who should be granted letters of administration of the estate for this particular purpose."

46. If there is no executor or administrator the duty to bury a body then falls residually on the local authority where the body is to be found.

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47. One then considers who is then entitled to the grant in this case. The only will before the court is Congressman Arroyo's Californian will. The recognition of that will in this country is governed by rule 30 of the Non Contentious Probate Rules 1987 which provides as follows:-

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    "Grants where deceased died domiciled outside England and Wales

    30.-(1)?Subject to paragraph (3) below, where the deceased died domiciled outside England and Wales, a registrar may order that a grant do issue to any of the following persons-

    (a) to the person entrusted with the administration of the estate by the court having jurisdiction at the place where the deceased died domiciled; or

    (b) where there is no person so entrusted, to the person beneficially entitled to the estate by the law of the place where the deceased died domiciled or, if there is more than one person so entitled, to such of them as the registrar may direct; or

    (c) if in the opinion of the registrar the circumstances so require, to such person as the registrar may direct.

    (2)?A grant made under paragraph (1)(a) or (b) above may be issued jointly with such person as the registrar may direct if the grant is required to be made to not less than two administrators.

    (3)?Without any order made under paragraph (1) above-

    (a) probate of any will which is admissible to proof may be granted-

    (i) if the will is in the English or Welsh language, to the executor named therein; or

    (ii) if the will describes the duties of a named person in terms sufficient to constitute him executor according to the tenor of the will, to that person; and

    (b) where the whole or substantially the whole of the estate in England and Wales consists of immovable property, a grant in respect of the whole estate may be made in accordance with the law which would have been applicable if the deceased had died domiciled in England and Wales."

48. I should also refer to the power on the court to pass over prior claims to a grant under section 116 Senior Courts Act 1981 which provides as follows:-

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    "Power of court to pass over prior claims to grant.

    (1)If by reason of any special circumstances it appears to the High Court to be necessary or expedient to appoint as administrator some person other than the person who, but for this section, would in accordance with probate rules have been entitled to the grant, the court may in its discretion appoint as administrator such person as it thinks expedient.

    (2)Any grant of administration under this section may be limited in any way the court thinks fit."

    HUMAN RIGHTS ISSUES

49. Cranston J reviewed this area in the case of Burrows v HM Coroner for Preston & Joan McManus [2008] EWHC 1387 (QB). In that case the dispute was over the right to take possession of the body of a young man who died in a Young Offenders Institution. The dispute was between the Claimant, his paternal uncle who brought him up over the last 8 years and his natural mother. Cranston J considered that two aspects of the Human Rights Provisions could be relevant. First article 9 and in particular the right to religion might be relevant and second article 8 giving a person a right to a private and family life which should not be interfered with by a public authority. He considered the question of the views of a deceased person and said this:-

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    "One thing is clear, that in as much as our domestic law says that the views of a deceased person can be ignored it is no longer good law. That rule of common law can be traced back to Williams?v?Williams, where it was said that directions given by a deceased as to the disposal of his body were not enforceable as a matter of law. It is quite clear from the jurisprudence of the European Courts of Human Rights that the views of a deceased person as to funeral arrangements and the disposal of his or her body must be taken into account. However, this aspect of Strasbourg jurisprudence is easily accommodated within domestic law: in this type of case a person's wishes can be regarded as a special circumstance in terms of Section 116 of the Act. Otherwise, the jurisprudence of the European Court of Human Rights does not cast doubt on the domestic law. Rule 22 can still apply. Special circumstances may displace the order of priority set out there although a high test has to be satisfied, whether it is necessary or expedient to do so.

    In some cases, if Article 8.1, the right to family life is engaged, it may be that apart from the deceased's wishes there are other claims to the exercise of that right. There may be, for example, be as there was in this case, the family life that Liam enjoyed with the Burrows family on the one hand and his family life with his mother, Mrs McManus on the other hand. Boyle?v?The United Kingdom (1994) EHRR 179 was a case that arose in a different context involving an uncle and nephew. The Commission in that case held that that relationship could fall within the scope of family life. Therefore, there is no doubt that those in Mr Burrow's position can invoke Article 8.1. Berrehab?v?The Netherlands (1988) 11 EHRR 322 arose in an immigration context. There the father had seen his daughter a number of times each week before he was deported from the Netherlands, although he divorced the mother and did not cohabit with her again from before the birth. The Court said that 'a child born of such a union is ipso jure part of the relationship; hence from the moment of the child's birth and by the fact of it, there exists between him and his parents, a bond amounting to 'family life', even if the parents are not then living together. Subsequent events of course, may break that tie...'. In my judgment, Liam's family life with his mother had not been broken by events. Where, as here, there is a conflict in terms of the engagement of family life under Article 8.1, the Court is required to focus intensely on the comparative importance of the different rights being claimed, and to balance those competing rights so as to minimise the interference with each to the least possible extent. This becomes relevant to the order to be made in this case, which seeks to accommodate both Mr Burrows and Mrs McManus."

50. Further he gave directions to coroners and said this in paragraph 29:-

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    "In those cases, however, where a compromise is not possible,?coroners need to make a decision. They do this by asking themselves two questions, first, are there any special circumstances which weigh in favour of varying the order of priority set out in Rule 22. Consistently with the jurisprudence of the European Court of Human Rights, special circumstances include the wishes of the deceased person, if there is clear evidence of those wishes. Given that there are special circumstances and these weigh in favour of varying the order of priority in Rule 22, a second question they need to ask is whether it is necessary or expedient to do so. Cases such as the present, where both questions can be answered affirmatively, will be very unusual. The courts will be slow to interfere, although if it appears that there may be a legal challenge to their decision?coroners?will need to delay releasing the body for a short time so that parties can apply for urgent relief. If cases are brought to the High Court, they can be and will be handled expeditiously."

51. I confess that I have some difficulty in a post-mortem application of human rights in relation to a body as if it has some independent right to be heard which is in effect what Cranston J is saying. I would respectfully disagree with his conclusion in paragraph 20 and 29 as set out above. It seems to me that the established law is correctly summarised by Hale J as she then was in Buchanan which gives the executor the primary duty to dispose of the body. In disposing of the body the executor is entitled to have regard to the expression made by the deceased but is not bound by them. Given that principle in my view there is no room further for any application of any human rights concepts to protect the right of the body to speak from death as it were.

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52. As the Buchanan and Burrows cases show where there is no executor the question of the appointment of an administrator arises. At that stage section 116 can be engaged to ensure that the appropriate person according to the court is appointed administrator if special circumstances apply.

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53. In the present case Bernardina has the prima facie right under rule 30 (1) (a) NCPR 1987. As the evidence set out above shows the Californian will will be recognised in the Philippines. That is where Congressman Arroyo died domiciled.

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54. In addition the deceased's express wishes will be given consideration. Those wishes are set out in the evidence and supported by the Healthcare Directive which he completed. I have been provided with some annotated codes in respect of the Healthcare Directive. It is clear that Ms Ibuna having been directed by Congressman Arroyo takes priority over Mrs Arroyo for example.

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55. Bernardina as executrix under the Californian will would be entitled to seek clarity by virtue of rule 30 (3) as the will satisfies the requirements of sub paragraph (a) thereof. This consequently displaces rule 28 which otherwise dis-applies the priority provisions set out in rules 20-27. Under rule 20 (a) she has the first priority.

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56. As I have said both she and Ms Ibuna have stated in evidence that they wished to bury Congressman Arroyo in accordance with his wishes. Given all of that there is no justification for not applying rule 20 (a) save in one respect. It is appropriate in my view for the court to have regard to the Healthcare Directive. It is clear that Ms Ibuna was the preferred person from the deceased's point of view to deal with the disposition of his body. Bernardina accepts that and is willing to allow Ms Ibuna to make the arrangements. In those circumstances there are in my judgment special circumstances enabling me to exercise my powers under section 116 SCA 1981 and appoint Ms Ibuna a joint administrator with Bernardina. That would then mean that the executrix under his will (recognised in the Philippines as I have said) and the person recognised by him in the Healthcare Directive (also recognised and given paramountcy in the Philippines) will jointly have the responsibility of taking possession of the body and disposing of it as they have said in accordance with his wishes. It seems to me that any personal representative will make any decision as to the disposal of the body and take into account the wishes of the deceased. But that should not in my view have a paramountcy as suggested in Burrows case; it is a factor which the personal representatives can take into account and no doubt personal representatives will bona fide consider the deceased's wishes.

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57. For all of those reasons in my judgment as I indicated at the conclusion of the case, is that I should grant Letters of Administration jointly to the Claimants to take possession of the body for the purpose of its transportation to the Philippines and its disposal in accordance with the late Congressman Arroyo's wishes.

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58. I do hope that this judgment will be recognised by the Philippine Consulate. I hope the other parties who are disputing this will also recognise the judgment so as to enable Congressman Arroyo's remains to be disposed of as soon as possible in accordance with his clearly expressed wishes both demonstrated in evidence and by signed documents. ??

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The actual location is:?Ibuna & Anor v Arroyo & Anor [2012] EWHC 428 (Ch) (02 March 2012) ?

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