NI High Court makes declarations in headstone dispute

About this case:

• Citation:
  [2026] NICH 27
• Judgment:
  External link
• Court:
  NI High Court
• Judge:
  Lady Justice Denise McBride

Delivering judgment for the High Court, Lady Justice Denise McBride determined that the applicant father could not erect a headstone on his son’s grave where he did not come within the provisions of the relevant regulations and where the holder of the exclusive rights of burial, being his son’s maternal aunt, did not provide her consent thereto.

Mr J. McClurkin appeared for the applicant instructed by Clarendon Legal NI, Mr R. Dowd appeared for the respondent instructed by Dickson McNulty & Co Solicitors, and Mr J. Stitt appeared for the notice party instructed by Derry City & Strabane DC Legal Department.

Background

The deceased, Mervyn Kenneth McNair, was born to the applicant father and to Victoria Harper in July 2003.

His parents were not married, and upon his death in November 2022, he was survived by the applicant, his three brothers, one sister and one half-sibling.

In or about 2012, the applicant became estranged from his family due to domestic abuse perpetrated by him, with his lengthy criminal record including convictions for offences against the deceased’s mother and siblings.

Following the deceased’s death, the applicant sought to put in place the necessary funeral arrangements. Solicitors acting on behalf of the applicant and the respondent, the deceased’s maternal aunt, agreed that the respondent would have carriage of the funeral.

The respondent purchased a grant of exclusive right of burial from the notice party, Derry City and Strabane District Council, and the deceased was buried in Ballyoan Cemetery in Rossdowney Road, Derry. No fees were paid for a headstone, and no headstone was erected at the deceased’s grave.

The applicant purchased and had inscribed a headstone and sought to place the headstone on the deceased’s grave. The respondent refused permission to do so, and in correspondence of May 2024, the notice party confirmed to the applicant that the only person entitled to erect a headstone was the respondent.

The applicant subsequently sought an order that he was entitled to erect and maintain a headstone at the deceased’s grave and sought declarations as to the extent of the rights granted to the respondent, as to her entitlement, if any, to erect a gravestone and as to the true construction of the Public Health (Ireland) Act 1878 and the Burial Grounds (Northern Ireland) Regulations 1992.

The applicant contended that the grant of an exclusive right of burial does not include the right to erect a headstone and that this right could be conferred on a person other than the burial right’s holder.

The notice party and the respondent alleged that in the absence of the burial right holder’s consent, only the burial right’s holder was entitled to erect a headstone on the grave.

The High Court

Lady Justice McBride considered that the central dispute in the case related to whether the notice party may permit a person other than the burial right’s holder to erect a headstone on the grave without their consent, which dispute gave rise to novel legal questions concerning the legal nature of an exclusive right of burial and whether same includes an incidental right to erect a headstone on a burial plot.

As to the legal nature of an exclusive right of burial, the High Court explained that while the jurisprudence revealed no consistent view on the issue, the dominant view was that an exclusive right of burial creates a contractual licence.

Concluding that that categorisation properly reflected the nature of the right created, the court confirmed that the rights conferred on the grantee were to be gleaned from the contractual terms agreed between the parties, namely the terms within the “Deed of an Exclusive Grant of Burial Rights” entered into between the notice party and the respondent.

Noting that the deed stated that it was made by the notice party “in pursuance of an in exercise and by virtue of the powers conferred by” various statutory provisions, Lady Justice McBride was satisfied that the rights granted to the respondent fell to be determined by construing the terms of the deed, in accordance with the provisions of s.178 of the 1878 Act.

Having regard to inter alia McGough v Lancaster Burial Board [1888] QBD 323, the judge determined that the ordinary and natural meaning of the words “and also” in s.178 created three distinct and separate rights, an exclusive right of burial, a right to construct a vault or place of burial, and a right of erecting a monument or gravestone.

Finding that the notice party could choose to sell one, two or three of those rights, the High Court highlighted that this construction gave rise to two further questions: what rights were granted expressly to the respondent by the deed and, if she was not expressly granted the right to erect a headstone, whether there was an implied term in the deed that she had the exclusive right to apply to the council for permission to erect a headstone on the grave plot?

Turning to the principles of contractual construction, the court set out that the starting point was to interpret the express words of the deed and then to consider whether, and if so what, terms must be implied by fact.

Noting that the deed stated was silent as to the grant of a right to erect a headstone, Lady Justice McBride outlined that the implication of a term to the effect that the respondent had an exclusive option to apply to erect a memorial on the grave was necessary applying the “business efficacy” or “obviousness” tests for the implication of terms.

The court’s reasoning included that the implication of the term was necessary to preserve the contractual purpose and practical efficacy of the burial right, as “If this term were not implied the council could authorise a stranger to place a permanent memorial upon the grave plot and the memorial could be to someone other than the person buried in the grave plot.”

The court further considered, inter alia, that the mandatory wording of the statutory scheme, requiring the owner of burial rights to erect a memorial as soon as convenient after the subsidence of the earth has been completed, supported the view that the holder of the exclusive right of burial has an exclusive right to apply to the council for permission to erect a headstone.

Lady Justice McBride also highlighted public policy reasons for her decision and focussed on the wording of regulation 5(4) of the 1992 Regulations, finding that the applicant did not come within the provisions thereof.

Conclusion

Accordingly, the High Court declared that on the true construction of the grant in respect of the deceased’s grave plot, the respondent was granted the exclusive right to apply to the notice party for permission to erect a headstone thereon.

The court further declared that the notice party could not grant permission to the applicant to erect a gravestone on the grave, save in accordance with the provisions of regulation 5(4) of the 1992 Regulations or with the respondent’s consent.

Finally, the court declared that on the true construction of s.178 of the 1878 Act, the notice party does not have power to grant permission to a person other than the exclusive burial right’s holder to erect a memorial on a grave, save in accordance with regulation 5(4) of the 1992 Regulations or with the respondent’s consent.

McNair v Harper [2026] NICH 27