The Family That’s Buried Together, Stays Together

May 3, 2013 Hull & Hull LLP Funerals Tags: 0 Comments

The standing joke about cemeteries is that they are so popular, people are dying to get in. Apparently, some people have to go to greater lengths than others,  as was recently demonstrated in the peculiar case of Smith v. Cataraqui Cemetery Company, 2013 ONSC 2468 (CanLII).

While estate practitioners sometimes have to wrestle with the fact that clients can be loath to make plans about their ultimate demise, this case dealt with two people who had exceptional interest and foresight in this respect (albeit, with perhaps some oversight in their estate planning).  In 1869 (that is correct, not a typo), brothers Joseph and Darius Smith purchased burial lots in a cemetery near Kingston, Ontario for the then princely sum of $100.00. The plots permitted for the burial of up to 64 people.  In return for payment of the said funds, the two brothers were presented with a Deed to the lots (the “Smith Family Lots”).

It should be noted that, in general, when a person wishes his or her remains to be buried/interred at a cemetery, they purchase not the land on which they wish to be interred, but rather the rights to be interred in a specified lot or plot of land (i.e. the interment rights). 

The Deed to the Smith Family Lots confirms the brothers’ purchase of interment rights in respect of certain plots, and states (emphasis added):

to have and to hold the above granted Premises to the said Darius Smith and Joseph Smith and their Heirs and Assigns forever subject, however, to limitations and conditions with the privileges specified in the rules of the said cemetery…that they are actually and lawfully seized of the Land hereby granted

In the case, the Court was called on to answer what was meant by the word “Heirs” in this deed, and to consider the application of the relatively new Funeral, Burial and Cremation Services Act, 2002, SO 2002 C.33 (enacted July 1, 2012) to this matter.

The applicants in the case were three direct descendants of the two progenitorial Smiths.  They sought permission to ultimately be interred in the Smith Family Lots (where their parents and other Smiths had previously been interred).  The operator of the cemetery refused, stating that the original Smiths remained as the registered interment right holders of the Smith Family Lots and that the cemetery was never notified of the transfer of their interment rights.  The cemetery required written documentation to prove the applicants’ standing as heirs-at-law and/or to prove a transfer of interment rights to the applicants. 

The cemetery argued that it was merely enforcing the position given to it by the Registrar of Cemeteries of the Province of Ontario pursuant to the Funeral, Burial & Cremation Services Act.  The Registrar’s position was that the various lineal heirs of original Smiths must prove which of them is the interment right holder(s).  In the absence of such proof, the Registrar argued that theAct required that the matter must be determined by a Court after all potential heirs have been given notice of the Court proceeding. 

The fact that the cemetery had allowed four generations of Smiths to be buried, without previously raising such issues or requiring such proof, did not sway either the cemetery or the Registrar. They remained adamant that no one would be put in ground on their watch.  So, off to court the applicants went.

Thankfully, reason prevailed.  The Court held that the position taken by the Registrar and the cemetery was, frankly, “ridiculous” (a technical term, as used by one commentator), and declared that the three Smiths in question could be buried at the Smith Family Lots (although presumably not until they died!).  The Court, without difficulty, found that the applicants were the lineal descendants of original Smiths and, therefore, qualified as “heirs” under the terms of the Deed.  Specifically, the Court held that "heirs" was to be interpreted broadly, such that it would include lineal descendants or family members of lineal descendant of either brother.

Applying the law of estoppel to the case, the Court found that the cemetery’s silence over the years and the acts accompanying the interment of 33 Smiths in the Smith Family Lots since 1869 without formal proof that they were interment right holders, prevented the cemetery from now insisting the applicants prove they are the interment right holder of the said lots.  The cemetery was, therefore, estopped from changing its practice midstream.

Considering the application of the Funeral, Burial & Cremation Services Act to the matter (which provides that only interment right holders or those legally assigned interment rights can be interred in disputed plots), the Court held that the Act did not retroactively apply to the Deed to the extent that it would remove substantive rights granted to the “heirs” of the original Smiths by the Deed. 

A point worth considering for estate planners is that there was no evidence that the original Smiths transferred their interment rights while they were alive or devised their rights in their Wills.  The cemetery argued that interment rights, if not specifically transferred by the original Smiths during their lifetime, would have been transferred upon their death pursuant to the residue clause of their respective Wills (if no specific provision was otherwise made) or, in the absence of a Will, by way of the laws that relate to intestate estates.  This led, in part, to an argument by the cemetery that perhaps the only heirs entitled to be buried were the immediate descendants of the original Smiths. However, the Court made short work of this in observing, somewhat slyly, that it is unlikely that the original Smiths would have expected there to be 64 candidates for the spots from their immediate descendants and more likely intended future generations of Smiths to be buried in the Smith Family Lots.

Also worth noting is that the Court ruled that it was not necessary to serve/notify all possible descendants of the original Smiths (potentially one thousand to two thousand individuals) in order to assign the remaining 31 plots based on their respective priority (perhaps imagining what would happen if a public quest was put on to find anyone named “Smith” who might have a claim!).  Rather, the Court decided that the right to the plots will be assigned on a “ first-come first-serve basis,” for those who can prove their patrimony to the original Smiths.

Thanks for reading.  Enjoy the weekend!
Saman Jaffery

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