Council wins legal battle to bury mummified bodies of Edinburgh man’s parents

Lord Mulholland
Lord Mulholland

A Scottish local authority has been granted a court order to bury the mummified remains of a couple who died decades ago.

Hilda Marcel and her husband Eugenios Marcel died in 1987 and 1994 respectively, but their son Melvyn Marcel delayed their burial and stored their bodies until he could build a mausoleum in the grounds of his Edinburgh property.

A judge in the Court of Session granted an application by Edinburgh City Council for a decree by default for authority to bury the bodies after Melvyn failed to attend court hearings.

Lord Mulholland said that had he required to reach a decision on the merits he would have had “no hesitation” in granting decree, given the submissions before him.

The court heard that in 2002 following a police investigation into matters not directly related to the present action, it was discovered that the bodies of Eugenois and Hilda had not been buried following their deaths.

The defender, the executor of his parents’ estates, was spoken to and it emerged that the bodies were stored within premises at Gilmour Place in Edinburgh.

The embalmed bodies were removed to the city mortuary where they remained.

Following an inquiry by the Crown Office no proceedings were brought and the procurator fiscal confirmed in a letter dated October 2012 that the bodies could be released for burial or cremation.

Since then the pursuers had been in discussions with the defender over the burial of the deceased, but he failed put in place suitable arrangements for their disposal.

According to the council the defender had indicated an intention to build a “refrigerated unit” within his residential property within which the bodies could be stored as a “temporary measure” until he built an “above ground vault” to house the remains, but it understood that his intention ultimately was to have the bodies of his parents transferred to the West Bank in Gaza for burial.

The council sought decree de plano for an order for authority to bury the bodies as it has a statutory duty to dispose of the remains if two conditions set out in section 50 of the National Assistance Act 1948 are met: firstly, that the persons must have died or their bodies been found in the local authority area; and secondly, that no suitable arrangements for the disposal of the bodies have been or are being made.

In a written opinion, Lord Mulholland said: “The pleadings are clear in respect that the pursuer’s pleadings set out facts and circumstances to the effect that the conditions in section 50 are met. The defender’s answers read as a whole, taking due recognition of the fact that he is unrepresented, do not challenge the council’s pleadings on these issues.

“Therefore, even if the defender proved his averments, the conditions in section 50 would still be met and the council would therefore have a statutory duty to bury the defender’s parents.”

The judge noted that the bodies had been in the city mortuary for “many years” and “no doubt at some cost” to the council at a time when the public purse was under “significant constraint”.

He also noted that the defender had “ample opportunity” to make arrangements to dispose of his parent’s bodies in accordance with his and his family’s wishes, and that his suggestion that he intended to apply for planning permission for a mausoleum to house his parent’s bodies was unrealistic and nothing more than a “vague statement of intent”.

Lord Mulholland concluded: “In these circumstances, on the merits, I would have granted authority to the City of Edinburgh Council to undertake their statutory duties in the disposal of the bodies of the defender’s parents. I therefore grant decree by default and sustain the pursuer’s first and second pleas in law, and repel the pleas in law for the defender.”

He added: “I should add that it would be helpful, although I cannot compel it, if the City of Edinburgh Council, in carrying out their statutory duty, would give due consideration to any realistic requests made by the defender and his family as to the arrangements for disposal of his parent’s bodies.

“It is appropriate that the families’ wishes in this regard, if they have any, are considered. It is important that the City of Edinburgh Council undertake their statutory duties sensitively and with respect, as I am sure they will do.”

© Scottish Legal News Ltd 2021

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