A testator’s burial wishes are among the most personal considerations in estate planning. It can also be an extraordinarily expensive piece of testamentary planning, as previously discussed in our blog.
There is a sense of finality that accompanies this decision, and so unsurprisingly, it is one that attracts a great deal of reflection, both for the testator themselves, as well as those who they leave behind. Unfortunately, logistical challenges can arise while making this decision, often unknown until after a testator’s death.
Family Burial Plots – How They Work
It is common to hear about the ‘Family Plot’, where one’s family and (possibly) distant ancestors are buried. As the concept itself is relatively straightforward, we rarely stop to think about the practical implications of how these plots actually function.
Fundamentally, burial plots are assets. An individual, somewhere along the line, purchases the right to have remains interred within a cemetery, and where a family plot is concerned, usually the right to inter the remains of a certain number of people.
Unfortunately, this is where the simplicity ends, and particularly if the issue of interment becomes the subject of litigation.
Unlike most assets, determining the ownership of an interment interest can be surprisingly difficult. Sadly, it is common that the holders of interment rights do not know that they even hold these rights (or if they do, that they know how many ‘spaces’ remain.) This can lead to unfortunate circumstances where deceased individuals are not buried in the manner that they had hoped for during their lifetime.
In Smith v. Cataraqui Cemetery Co., the Ontario Superior Court held that interment rights are inherited lineally, and are gifted equally to a decedent’s children upon their death where no provision is made in the Will. Therefore, if only one ‘space’ remains within a family plot, and no discussion is had with a testator’s multiple surviving children, it is possible that years go by before it is realized that no space remains in the family plot.
The Bereavement Authority of Ontario
Another challenge is the record-keeping on the part of cemeteries themselves. In Ontario, cemeteries are regulated by the least famous of the three-letter agencies – in this case, the Bereavement Authority of Ontario (the “BAO”). The authority of the BAO is derived from the Funeral, Burial and Cremation Services Act, 2002 (the “FBCSA”), which provides at subsection 48(1)(d) that the owners of a family plot are entitled to receive a ‘Certificate of interment rights’. However, particularly for older or rural cemeteries, this record-keeping is not always complete.
As regional demographics in Ontario have shifted, gaps in cemetery management have arisen where the manager of a cemetery (often smaller churches) ceases to operate, passing responsibility for the cemetery on to the local government.
In these circumstances, it is possible for cemetery records to become lost – leaving the local government unable to confidently identify which areas have been filled, and which still remain open. Understandably, those newly responsible for cemeteries are often hesitant to approve burials if they cannot be certain of where existing remains are interred, and consequently, the decision can be made to pre-emptively ‘close’ a family plot for lack of continued records. This is a deeply unfortunate outcome for all parties concerned.
What To Do?
So, if your family owns a plot, and this is an important consideration for you or your loved ones, talk to your family, as records may exist. If you are unable to find the necessary records, the party responsible for managing the cemetery is required by law to keep up-to-date records. If neither of these routes yields a result, then the BAO may be of assistance to your family.
Thanks for reading!