A WIDOW has lost her legal battle over where to bury the body of her soldier husband.
Stacy Connolly went to court after learning her husband’s body would be released to his mother for burial.
Mark Connolly, 24, who survived a deadly blast in Afghanistan, died after a bar brawl with Black Watch comrades in Germany earlier this year.
The Ministry of Defence decided Private Connolly’s body should be returned to his mother, Linda McComiskie, from Methil, Fife.
Mrs Connolly, from Forfar, Angus, went to the Court of Session to ask for a judicial review of the MoD’s decision.
But the judge, Lord Brodie, in a ruling released today (Wed) dismissed the legal claim, saying it was not for the court to decide on the release of Private Connolly’s body.
The soldier met his future wife in 2007 and the couple married in 2009. Later that year he survived a bomb attack in Afghanistan which killed a colleague.
He died in hospital in May this year following a fight outside a bar in Paderborn, where he was attending an Army drivers’ training course
The MoD said they had to release Private Connolly’s body to his mother because she was named as executor.
Mrs McComiskie wants her son to be buried in a family lair in Methil, Fife.
But Mrs Connolly challenged the decision, claiming her husband had made it clear to her he did not want to be buried in the area because he did not like it.
Instead, she said her husband’s wish was to be buried wherever they had settled as a couple, most recently in Forfar. Mrs Connolly’s plan was to bury her husband next to her brother’s grave in the town.
However Lord Brodie has now dismissed the legal claim as
“incompetent.” He said he was not persuaded that the release of the body was a matter for judicial review in the Court of Session.
“Determining what are appropriate funeral arrangements by reference to the quality of relationships within a family appears to me a task for which the court is quite unsuited.
“Fortunately this is not a task I need carry out in the present case. “
He said the issue for the court was to determine whether the MoD’s proposal to transfer custody of the body to Mr Connolly’s mother was legal, which it was.
However, he said it would be
“equally’ legal if the MoD proposed to transfer the body to Mark’s widow.
He said the arrangement of a
“dignified and appropriate funeral’ was essentially a
“private and family matter’ to be decided by “the good sense and good feeling of the parties”.
“Scots law has not had much to say on the matter and in particular, at this stage in its development offers no formal mechanism for prioritising claims,’ he said.
According to the court papers, Mrs Connolly nursed her husband back to health after he was injured in the explosion in Afghanistan in June 2009.
She was flown there to be with him, it was claimed. But Private Connolly’s mother refused to go to visit him there as the army did not pay her fare, according to court documents, and her son was offended that she did not visit him.
Lawyers acting for Mrs Connolly said her husband had an argumentative relationship with his mother.
However, he appointed his brother and mother as executors because of
“erroneous’ advice from the army that it was not appropriate to appoint the same person as executor and beneficiary, his wife’s lawyers claimed.
Specialist army detectives were drafted in to question two Scots soldiers over Mark’s death in May.
The two fellow Black Watch soldiers were arrested over the fight which erupted after an argument about football.
It is believed the soldiers were stopped on a minibus as they headed for Scotland and were sent to Germany to face Royal Military Police officers.
Soldiers from 3 Scots, the Black Watch, had been celebrating after finishing their driving course.
Speaking recently, Mrs McComiskie said they would be prepared to challenge the ruling if it went against them.
She insisted her son wanted to be buried locally, next to his grandfather – and she said she was determined to follow his wish through.
“It’s Mark’s last wish and testament to be buried here and we just want to do what’s right for him,’ she said.
Private Connolly served in Afghanistan with the Black Watch, 3rd Battalion of the Royal Regiment of Scotland.
He had also seen service in Iraq and Northern Ireland.
A spokeswoman for the army said inquiries into Mark’s death were still continuing. She added:
“Nobody has been charged. However, the Royal Military Police are taking a lead on the investigation. Their special branch is still investigating. “
