THE incumbent in whom the ownership of a churchyard was vested was criticised by the Chancellor for lack of diligence when he gave permission for the replacement of a headstone without inspecting the original one. Also, the Diocesan Advisory Committee (DAC) had added to the cost and delay of later proceedings, Chan­cellor David McClean said.

He was speaking in the Consistory Court of Sheffield when granting a faculty to remove an illegally placed replacement headstone and to install another one as similar as possible to the original.

The case concerned two headstones in the churchyard of St Thomas's, Kilnhurst, over the grave of Frederick Howitt, who died in May 1946, aged 28. The first headstone was placed there within a year or two of his death. In 2002, it was replaced by a second headstone of a more elaborate design, and with a differ­ent inscription.

John Howitt, the son of the deceased, was the petitioner for a faculty for the removal of the second headstone, and its replacement with a replica of the first one. The petition was opposed by Mrs Kennedy, a cousin of the petitioner.

The parties were divided by a family feud, and, because they gave very different accounts of the facts, the petition could not be dealt with by written representations; so the Chan­cellor had to hear evidence.

The petitioner said that the original head­stone was replaced by his aunt, Edith Marshall, who told the then Vicar, the Revd Nigel Elliott, that she was the next of kin of the de­ceased, and that the petitioner and his mother were dead. The second headstone made no mention of the petitioner or his mother, and the petitioner wanted it replaced by a headstone that was as similar as possible to the original one.

The law about churchyards and monu­ments is that the ownership of a churchyard is vested in the incumbent, but a family may be given the right to use a particular grave-space for burial. No monument may be erected without the consent of the incumbent, and
no monument may be removed without the grant of a faculty. The person who installed the headstone by commissioning and paying for it owned the headstone for life, and after the death of that person, the heir at law of the person commemorated takes ownership of the headstone.

The Chancellor heard evidence about the ownership of the headstone, and what was in­scribed on the first headstone. The petitioner was less than three years old when his father died, and Mrs Kennedy (as she now is) was aged one. They therefore had no recollection of events at the time of the death of Frederick Howitt. The petitioner relied on accounts given by his mother, who died in 1986. Mrs Kennedy relied on the account given by the aunt, Mrs Marshall, who died in 2010, and who had arranged for the first headstone to be removed and the second one installed.

Mrs Kennedy said that it was the aunt who erected the original headstone, and that the words inscribed on it spoke of the deceased as "A dear father, son and brother". She said that, to her knowledge, the petitioner had never visited the grave, and that she and her aunt began the process of replacing the headstone. The second headstone spoke of "A dear son and brother", only.

The Chancellor said, however, that the ac­count given by the petitioner was more likely to be true: that the widow of the deceased owned the first headstone, and ownership had now passed to the petitioner. The petitioner also said that the wording on the headstone spoke of a "Dear husband and daddy" and produced a photograph to confirm that.

The Chancellor said that he was satisfied that the petitioner, who "spoke movingly of the fact that the grave was his one link with the father of whom he had no memory", did visit the grave.

The Chancellor was also critical of the incumbent at the time, who had granted permission for the installation of the second headstone without realising that there was already one in place. He had not inspected the existing headstone, and had "merely signed the paperwork". If the Vicar had "been suf­ficiently diligent to walk the necessary 100 yards, he would have realised that this was not a routine case", the Chancellor said, "and a great deal of trouble and expense would have been avoided".

When the petitioner discovered that the headstone had been replaced, he spoke to the Vicar, who was distressed and apologetic. He suggested that the petitioner should try to retrieve the original headstone, but it had by then been destroyed. The petitioner then discovered that he needed to get the matter rectified, and that he needed to start with the DAC. But his repeated efforts to obtain some definitive response from the DAC failed.

The Chancellor said that the delay, which was the fault of the DAC, gave "cause for great concern", but the passage of time did not prevent the petitioner from seeking to remedy the unlawful removal of the original head­stone and its replacement by the stone now located on the grave. The "whole lamentable record of delay and inaction by the diocese and some of its office-holders came close to denying justice" to the petitioner, the Chan­cellor said, and added to the length and costs of the proceedings.

The faculty was granted to remove the second headstone and install a replica of the first. The petitioner must, as is usual, pay the court costs, which will be considerable. Mrs Kennedy will bear her own costs.