What happens after you die? There are numerous philosophical and religious views on this question, but the practical aspect of what happens to a person’s body after death is comparatively clearer in law. The estate trustee is legally responsible for dealing with the deceased’s remains. This does not mean that the estate trustee has a proprietary right in the deceased’s body, rather, it is a right of possession for the purpose of making final arrangements.

The common law imposes certain legal duties on the estate trustee which reflects the fundamental dignity that should be accorded to the dead. The estate trustee has a legal duty to:

1. dispose of the body in a dignified manner;
2. dispose of the body in a manner that is suitable to the deceased’s station in life; and
3. inform the deceased’s next of kin of the details of the disposal of the body.

The estate trustee’s discretion to dispose of the remains is also circumscribed by laws governing the donation of the body or organs, a coroner’s investigation and restrictions on the interment or disinterment of the body.

Estate trustees should be aware of these duties while remaining sensitive to the grieving family and friends of the deceased, some of whom may have distinct opinions on the deceased’s true wishes or the disposition that is most appropriate. It is certainly a delicate balance to keep. The testator may have included instructions or preferences on the disposition of their body in their Will; while this is not binding on the estate trustee, there is nothing to prevent the estate trustee from satisfying the wish if the value of the estate also permits the related expense. It may be difficult for the deceased’s loved ones to understand why the disposition occurs in a manner that is inconsistent with the will or inconsistent with the deceased’s beliefs or the deceased’s family’s beliefs.

Abeziz v Harris Estate, [1992] O. J. No. 1271 is one such example where there was a dispute about whether the deceased’s body should be cremated in accordance with his known wish, or buried in accordance with a family member’s wish. This issue arose in the context of a will challenge, but the court’s analysis on the issue of disposition is helpful. The deceased was raised in the Orthodox Jewish faith from childhood but the evidence suggested that he did not observe this faith nor practice the customs in adulthood. The deceased had expressed a continuing wish to be cremated after death in verbal discussions with his longtime girlfriend (who was also the named executor in his will). The deceased’s mother opposed the cremation for religious reasons.

The court did not order the estate trustee to dispose of the remains in any particular manner but emphasized that: the estate trustee has the responsibility and discretion to make such a decision, and that the estate trustee is not barred from exercising their discretion to comply with the testator’s wishes regarding cremation. The implicit suggestion is that the estate trustee is not bound by the deceased’s family’s wishes in exercising their discretion in disposing of the body. This case highlights the moral and emotional difficulties inherent in an estate trustee’s decision regarding the disposition of the body. Testators, while living, may be able to pre-empt such difficulties by clearly expressing their wishes to family members and friends in advance and in confirming their wishes in a valid testamentary document.

Thank you for reading,

Ashley Naipaul