In Curry v. Curry, 2023 NSSC 402, the Supreme Court of Nova Scotia addressed a rare and largely unsettled question in Canadian law: how disputes between executors themselves should be resolved when they disagree over the disposition of a deceased’s cremated remains. Of particular interest was the role, if any, of a majority rules clause in the will.
Background
Ms. Curry died in January 2022. Her will appointed three of her daughters as co‑executors and included a majority rules clause providing that, in the event of disagreement, the opinion of the majority would prevail.
A dispute arose over the disposition of Ms. Curry’s ashes. Two executors proposed that all of the ashes be interred with Ms. Curry’s parents. The third executor proposed dividing the ashes so that part would be interred with Ms. Curry’s late husband and part with her parents. The minority executor challenged the majority’s decision‑making process.
No Property in a Body and the “Overriding Obligation”
Justice Keith reaffirmed established common law principles: there is no property in a dead body, and burial or cremation instructions in a will are not legally binding in the same way as testamentary gifts.
Executors nevertheless have a right of possession of the deceased’s remains for a limited purpose. They are subject to an overriding obligation to ensure disposition in a manner that is dignified and respectful. The deceased’s wishes are relevant but not determinative, and religious law does not govern the outcome.
Majority Rules Clauses: Not Automatically Determinative
A key feature of Curry is the Court’s distinction between:
- Executors administering estate property, and
- Executors exercising a common law duty to dispose of human remains.
Because human remains are not property, conventional estate administration principles, such as unanimity or reliance on a majority rules clause, do not automatically apply.
This was discussed in the context of Alberta case law in an earlier H&H publication, which emphasized that majority rules clauses cannot oust the court’s supervisory role or override fundamental duties of fairness and disclosure in estate administration. Even where such clauses are valid, they do not grant the majority unfettered authority.
Deference to the Majority, With Limits
Justice Keith held that, where executors disagree about the disposition of remains, the majority’s decision is generally entitled to deference regardless of whether the will contains a majority rules clause. This reflects the practical need for timely disposition and the absence of property interests requiring unanimity.
However, deference is not absolute. Court intervention is warranted where:
- The majority’s proposal fails to meet the overriding obligation of dignified and respectful disposition; or
- The decision‑making process is rendered entirely meaningless due to basic unfairness.
Procedural Fairness and Meaningful Participation
Although executors disposing of remains are not fiduciaries per se, the Court held that co‑executors are entitled to minimal procedural fairness. This includes:
- Sharing important and relevant information already in one’s possession; and
- Giving reasonable and respectful consideration to opposing proposals.
In Curry, the majority executors withheld relevant information and rigidly rejected contrary evidence. As a result, the Court found the process fundamentally unfair and stripped the majority decision of deference.
This echoes the concerns identified in Childs v. Childs, 2026 ONSC 801, discussed further in another H&H publication, which emphasized that majority voting cannot cure entrenched dysfunction or substitute for cooperative decision‑making.
Remedy and Takeaways
Rather than remitting the issue back to the executors, the Court exercised its discretion and ordered that Ms. Curry’s ashes be divided equally between her husband and her parents. The Court declined to approve further subdivision of the ashes among children due to concerns about certainty and dignity.
Curry v. Curry reinforces several points of practical importance:
- Majority rules clauses are useful tools, but their effect is context‑specific.
- They do not eliminate the court’s supervisory role or excuse fundamentally unfair conduct.
- Even outside traditional fiduciary frameworks, executors must engage with one another in a meaningful and procedurally fair way.
The decision adds an important dimension to the jurisprudence on executor disputes and confirms that, where process breaks down, majority rule will not carry the day.
Thanks for reading!
Li-Mei Mayer