Cutting edge probate Succession and body parts not

Cutting edge probate: Succession and body parts (not for the feint hearted) Matthew Watson

THE CLASSICAL RULE • No property in a body • So you cannot leave your body in a will – Williams v Williams (1882) 20 Ch. D 659

DETACHED BODY PARTS • Doodewood v Spence (1908) 6 CLR 406 • R v Kelly [1999] QB 621

DETACHED BODY PARTS • Doodewood v Spence (1908) 6 CLR 406 “when a person has by the lawful exercise of work or skill so dealt with a human body or part of a human body in his lawful possession that it has acquired some attributes differentiating it from a mere corpse awaiting burial, he acquires a right to retain possession of it. ” – Chief Justice Griffiths

DETACHED BODY PARTS • R v Kelly [1999] QB 621 “it may be that if, on some future occasion, the question arises the courts will hold that human body parts are capable of being property. . . even without the acquisition of different attributes, if they have a use or significance beyond their mere existence. ” – Rose LJ

THE SPERM CASES • Yearworth v North Bristol NHS Trust [2010] QB 1 • Bazley v Wesley Monash IVF Pty Ltd [2011] 2 Qd R 207 • Roblin v Public Trustee for the Australian Capital Territory (2015) 10 ACTLR 300 • Cresswell v AG of Queensland [2018] QSC 142

TATTOOS

TATTOOS – IN A WILL? • An enforceable direction to remove the tattoo in the Will? – Re JS (Disposal of Body) [2016] EWHC 2859 (Fam) • A novel ownership question arises: – Capable of being property? – Owned by the PRs or the estate? – If the estate – how should it be disposed of?

JUST FANTASY? “In this jurisdiction developments in medical science now require a re-analysis of the common law’s treatment of and approach to the issue of ownership of parts or products of a living human body, whether for present purposes (viz an action in negligence) or otherwise” – Lord Judge CJ