Cremain in Light: Dealing with Cremated Remains

April 30, 2021 Paul Emile Trudelle Litigation Tags: , , 0 Comments

“Whatever one’s beliefs might be surrounding death, it is likely safe to say that very few people would want their surviving children to be arguing in court about the placement of their ashes almost 5 years after their death. But there are strange things done in the name of ‘respect’.”

This opening paragraph from the decision of Krauch v. Degen Estate, 2021 NSSC 108 (CanLII) serves as the introduction to a consideration of an estate trustee’s rights and obligations with respect to the disposal of ashes, or cremated remains (or, as I only recently heard, and am still not comfortable with, “cremains”).

In Degen Estate, mother died in May 2011. She did not have a Will. Her remains were cremated and were placed in a niche purchased by mother and father. Father then died, leaving a will that appointed one of his six surviving children as estate trustee.

Issues arose with respect to the remains of mother and father following father’s death. In particular, mother’s remains, which were in the family niche, were moved to a “cremation bench” purchased by father. The cremation bench was 25 feet from the niche. Father’s remains remained in the niche. One child strongly objected to the separation of mother and father’s remains.

The objection took the form of an objection to the accounting prepared by the estate trustee of father’s estate. The court held that this was improper. “Disputes about how a person’s ashes are to be kept are not disputes that involve the passing of the accounts of the estate. [The objecting child’s] concerns about the internment of her parents’ ashes are not grounds for the court to refuse to pass the accounts.”

The court went on to consider the legal status of ashes. The court noted the difference between a body and ashes. With a body, once it is interred, there is a sense of finality. Bodies are generally not subject to being disinterred or moved elsewhere. Cremation, however, is different. “A person’s ashes may be divided among family members, placed in urns, moved from place to place, kept on a mantle, buried, scattered or used to create a ‘diamond’.”

The court referred to case law establishing the point that remains are not property of the estate. The estate trustee has possession of the remains and the obligation to dispose of the remains in a manner that is dignified and respectful. In doing so, the estate trustee has significant discretion.

“But the executor’s obligations are fulfilled when arrangements have been made for the appropriate disposition of the ashes. That may involve simply scattering them, having them buried or otherwise interred, or provided to family members, all at the discretion of the executor. An executor is not bound by a testator’s wishes to have ashes scattered in a particular place or places or retained or interred in a particular way. An executor should not be responsible for what family members or others do with the ashes that have been entrusted to them. And estates should not be required to respond to claims by family members for a share of the ashes or for a say in the final disposition of the ashes. That kind of litigation would be unseemly, wasteful and the very opposite of dignified.

As a final observation, the court noted that in any event, mother’s ashes were not part of father’s estate. In moving mother’s ashes, the son was not acting as estate trustee of father’s estate. The court stated that there was no legal impediment to the moving of the ashes by the funeral director from the niche to the cremation bench. However, the court does not say what authority the funeral director would have.

Read Ian Hull’s blog on the question of whether human remains are property of an estate, here.

Have a great weekend.

Paul Trudelle

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