In brief
The recent case of Godwin v Godwin is noteworthy for two reasons: it concerned a burial dispute between two brothers, and it raised questions about the use of, and potential risks, of AI tools in the preparation of witness statements.
Background to the burial dispute
Michael Godwin (Mr Godwin) died on 5 November 2025. He was survived by his two sons, William and Jason, a third son having pre-deceased him.
The case arose out of a dispute between the two brothers as to how Mr Godwin's body would be disposed of: William wanted Mr Godwin to be cremated following a ceremony in England, whereas Jason sought a Christian funeral and then for Mr Godwin to be buried in Hargeville Cemetery, in France, or alternatively some other cemetery in the South of France.
After his retirement, Mr Godwin had lived in the South of France for around thirty years. However, he had never fully integrated into French life, not speaking the language and having few friends there.
On 25 April 2003, whilst in hospital for a heart procedure, Mr Godwin had handwritten a will expressing a wish for his body to be: "interred in the plot reserved from me at the cemetery in Hargeville…France, with Arlette attending”.
'Arlette' was his then partner, Arlette Thomas, who had reserved burial plots in Hargeville cemetery for her and Mr Godwin - Hargeville being the area where her family was from. However, their relationship had ended some 15 years before his death, the plot which she had reserved for Mr Godwin was no longer available and Hargeville was not somewhere Mr Godwin himself was connected to, it being around 600 miles from where he had made his home in the South of France.
Notwithstanding this, an image of Hargeville was found among MrGodwin's papers, seemingly printed after his split from Ms Thomas and bearing the caption: "This is church for my funeral. In the graveyard I have a plot I share with Arlette Thomas adjacent to the Thomas family grave. Please bury me there."
The brothers' respective positions
William wanted Mr Godwin to be cremated on the basis that:
- his mother and brother (Mr Godwin's other son) had both been cremated;
- a cremation is cheaper than a burial and he was concerned that the funds in the Estate may not cover a burial, on top of its other debts; and
- a cremation could be organised more quickly than a burial in either country.
He opposed a burial in Hargeville on the basis that the family had no connection to it, the plot reserved for Mr Godwin was no longer available and there was a chance that Ms Thomas may not even be buried there in the future. He also stated that he would not attend any funeral in Hargeville.
Jason wanted Mr Godwin to have a Christian funeral and be buried in Hargeville (or some other cemetery in the South of France), on the basis that:
- he wanted to give effect to Mr Godwin's wishes;
- France is the place he most closely associated with Mr Godwin, and where he had made his most lasting memories of him; and
- an attended funeral would allow him to properly pay his respects to his father
He opposed a cremation for both religious (Jason being a Seventh Day Adventist) and emotional reasons, feeling that he could not properly commemorate his father without a marked grave and saying that he could not think of his father being cremated.
The Decision
As no grant of representation had yet been made, and the Judge was uncertain whether the 2003 will would be valid under French law, or would entitle William to take a grant of representation in England and Wales, he considered parties were equally entitled to a grant of administration. He therefore appointed William as administrator under S.116 of the Senior Courts Act 1981, with this authority limited to dealing with the disposal of Mr Godwin's body.
This is a notable conclusion for the Judge to have reached, as ordinarily if there is a will, then the authority of the executor appointed in the will (including their authority to dispose of the body of the Deceased) derives from the will itself, rather than from any grant of representation. If the will was valid and validly appointed William as executor, then he had the power to deal with the disposal of the body. However relatively little (if any) consideration was given to the potential validity of the will, perhaps because the two brothers were both unrepresented and may not have been aware of this point.
In addition, the Judge directed that Mr Godwin would be buried in England following a Christian funeral there, on the basis that he considered that a Christian funeral and burial reflected Mr Godwin's wishes. Burial in France would risk delay and uncertainty, there was no family connection to Hargeville and Mr Godwin's grave was unlikely to be visited if he was buried there. There was also a possibility that a French funeral would have little meaning given the likelihood that none of the mourners would speak French.
In making his decision, the Judge gave consideration to the principle that the Court's overriding focus in such cases should be to ensure that a body is disposed of with "all proper respect and decency and without any unnecessary delay" (per Hartshorne v. Gardner [2008] EWHC 3765 (Ch)) and followed the dicta in Oldham MBC v Makin [2018] Ch 543 that whilst the Deceased's own wishes were a weighty factor, they were not determinative.
It is notable for the Judge to direct what actions should occur, despite appointing William on a limited grant to deal with this issue, as it seems somewhat redundant to appoint someone to make such decisions, but then tell them what decisions they must make. Again, one must wonder whether the outcome may have been different had the parties had legal representation in Court, rather than acting as litigants in person.
Use of AI
Both Jason and his ex-wife had submitted witness statements to the Court, which, on their own admission they had had "limited assistance from a 'digital assistant'" in drafting. They claimed that they had drafted the initial drafts themselves but then used ChatGPT (the 'digital assistant' in question) for "grammar, spelling, and 'presentation'", with ChatGPT not adding, removing or re-arranging any words when compared to their first drafts.
The Judge expressed several concerns about this use of AI, including that, in their view, there was "no good reason" for either Jason or his ex-wife to have used it, given that they both struck the Judge as "sophisticated people"; that referring to ChatGPT as a 'digital assistant' was unconventional and raised concerns that the extent of AI involvement was being obscured. No first drafts of the statements had been provided to the court.
As a consequence, the Judge decided that less weight should be given to these witness statements as they "cannot be sure that the…witness statements are in their own words" and that they were required to "approach the…evidence cautiously".
This approach reflects the broader judicial trend of recent years, illustrated by the introduction of Practice Direction 57AC in the Business and Property Courts, towards requiring witness statements to be expressed in the witness' own words, with restrictions placed on the assistance that may be provided in their preparation
Comment
This decision gives rise to three interesting learning points.
Firstly, as noted, where a valid will appointing an executor exists, that executor's authority to deal with the disposal of the body derives from the will itself and not from any grant of representation. It is important to ensure that questions of will validity are considered at the outset, before any application to the court is contemplated.
Secondly, given that the court's clear concern in burial disputes is to ensure disposal of the body with all proper respect and decency and without unnecessary delay, this can result in the Court reaching a decision which is different to any of the proposed outcomes from the different parties and any wishes expressed by the Deceased. Whilst the Deceased's expressed wishes remain a weighty factor, they are not determinative. The Court will consider the weight to be placed on wishes that may have been formed many years before death and in materially different circumstances.
Finally, consideration needs to be given to whether the use of AI to assist in drafting witness statements, and if AI is used, any initial drafts should be retained, so that they can be produced to evidence the true extent of the AI's involvement. In this case there was no real suggestion, as there has been in other cases, that AI hallucinated or included facts which were not there. The decision to give the witness statements less weight on this basis therefore seems somewhat draconian, particularly given that, as noted above, the parties all acted as litigants in person. It is also difficult to see any material difference in outcome between AI assisting with drafting a witness statement and a legal representative assisting with drafting a witness statement on behalf of a client (albeit one would hope that legal representatives are less prone to possible hallucinations and similar errors).