You’re likely familiar with the Christian burial phrase “ashes to ashes, dust to dust.” While that phrase has been recited over graves for centuries, it may need changing in Washington state. With the green light given to the composting of human remains, “dust to dirt” may be a more appropriate way of putting it.
A new path for human remains
The Washington state law allowing the composting of human remains will take effect in May of 2020. It means that, in addition to cremation or burial, a body can now be composted naturally into soil.
Like all composting, it’s a simple and natural process. The body is covered in a natural material, like straw or wood chips. Over the course of several weeks, the body breaks down into soil. Families are free to visit the complex during this process. When the composting is finished, the soil is given to the family and they can do with it as they please.
Environmental friendly – and cost effective
While composting won’t be an option for everyone, it will certainly appeal to those who want a cost-effective, environmentally-friendly option for disposing of their remains at death.
For instance, there are no air quality concerns that can come with cremation, and composting doesn’t use up valuable tracks of land the way a cemetary can. In fact, the process actually “creates” land by adding more soil to the world.
And cost-wise, the woman who spearheaded the move to allow composting – Katrina Spade, CEO of Recompose – estimates that the approximate cost of composting (US$5,500) will be just below the cost of cremation, and far less than a burial.
Are we ready Canada?
The composting of human remains makes sense on many levels, and it wouldn’t surprise me to see this practice spreading to other jurisdictions, including Canada. It may not be for everyone, but it’s hard to see a downside.
This CNN article and short video provide some more context to the adoption of human remains composting in Washington state.
Thanks for reading … Have a wonderful day,
A recent decision of Justice Dunphy recounts the wonderful history of Toronto’s cemeteries which ultimately grew into the Mount Pleasant Group of Cemeteries.
The decision begins at the beginning:
Forty-one years before Canada was launched as a nation and six years before the City of Toronto was incorporated, Thomas Carfrae the younger, Peter McPhail and a number of other inhabitants of what was then known as the Town of York brought a petition to the Legislative Council of Upper Canada. York’s population had surged after the War of 1812. It was approaching 2,000 and was still growing. However, it had only a Catholic and an Anglican cemetery while people of all faiths were arriving daily. They had passed the hat at a number of public meetings and raised $300 – a sum of money sufficient to purchase six acres of land a mile outside of town at the northwest corner of Yonge and Bloor. Their goal: to purchase the land and hold it for the purpose of a “general burying ground, as well for strangers as for the inhabitants of the town, of whatever sect or denomination they may be”. They judged that due to the recent rapid growth of the town “and the small portions of ground … allotted for the purpose of cemeteries”, there was a need.
They judged correctly. Their petition to the Legislative Council of Upper Canada found favour and a statute named “An act to authorize certain persons therein named, and their successors, to hold certain lands for the purposes therein mentioned” was duly passed and received Royal Assent in 1826: Acts of U.C. 7 Geo. IV, c. 21. The land that came to be known as “Potters Field” was purchased and started operation as a cemetery soon afterwards.
The cemetery group became known as the Mount Pleasant Group of Cemeteries. It has grown to include 10 cemeteries, 4 crematoria, 14 mausoleums and 5 visitation centres on 1,222 acres of land containing the resting place of 600,000. The Mount Pleasant location arboretum is said to be “one of the finest tree collections in North America”. “Practically every tree that will grow in this climate is found here.”
The decision, Friends of Toronto Public Cemeteries Inc. v. Mount Pleasant Group of Cemeteries, 2018 ONSC 7711 (CanLII), relates to the current management of the cemeteries. Ultimately, Justice Dunphy found that the current trustees of the Mount Pleasant Group of Cemeteries were not appointed in accordance with the 1826 Act. He also found that some of the operations of Mount Pleasant Group of Cemeteries went beyond the scope of the statutory trust.
For a video account of the beginnings of Mount Pleasant Group of Cemeteries, click here.
For information about the Friends of Toronto Public Cemeteries, click here.
Thank you for reading.
It is that time of the year when media outlets release their “top” or “most popular” lists, like the Time 100.
I came across a rather interesting and topical list the other day called “The Most Obnoxious Celebrity Wills” by Ranker. This particular list features 24 celebrity Wills and I will excerpt some of the notable mentions here:
- Napoleon Bonaparte’s Will was first on the list. Apparently, his Will included a direction for his head to be shaved and for his hair to be divided amongst his friends.
- Harry Houdini asked his wife to hold an annual séance to contact his spirit.
- Philip Seymour Hoffman wanted his son to be raised in three different cities: New York, Chicago, and San Francisco.
- Charles Dickens gave directions for a particular dress code at his funeral.
- Fred Baur, the person who designed the Pringles can, wanted to buried in a Pringles can.
Turns out testamentary freedom is whatever you want to make of it but the enforceability of provisions like these are another matter.
Thanks for reading and Happy Holidays!
Here’s a scenario that’s becoming more common. A family member dies. The deceased had expressed a preference for cremation, and you, as the estate trustee, honour those wishes. The funeral home hands you a rather heavy velvet bag full of ashes and then, well, and then what?
Rest assured, you’re not alone. According to the Cremation Association of North America, more than 68% of Canadians are cremated at death, a number that’s expected to rise to nearly 75% by 2020. And if a friend or relative’s ashes are entrusted to you, you must decide the final resting place for the deceased.
You have more options than you might think. For example, you can:
- Bury the ashes in a traditional cemetery plot
- Place them in a structure designed to store ashes (a columbarium)
- Scatter the ashes – over private land, crown land, or even over lakes and oceans
While there are some restrictions on where you can scatter ashes, the laws are far more liberal than you might think. Here’s an overview of what’s permitted in Ontario.
If you are unsure about whether a location allows for the scattering of ashes, check in advance to make sure.
Travelling with ashes
For many people, the preferred location for the burial or scattering of ashes requires plane travel, and that adds an extra layer of complication.
While some airlines allow for cremated remains to be stored in checked luggage, others only allow these remains in your carry-on baggage. So, check with your airline before you fly. Either way, ashes must be in a container that can be viewed by security scanners. Think plastic or cardboard and not metal. You can find more information here.
Do you want to be creative? It’s truly amazing what people will do with the ashes of loved ones, from creating vinyl records, to making pencils, to the claim of Keith Richards that he snorted some of his dad’s ashes up his nose. This article has 27 ideas for those who are a bit more creative minded. It may not ultimately be for you, but it makes for entertaining reading nonetheless.
Thank you for reading,
Although rare, disputes over the final resting place of a deceased are not unheard of. Such a dispute was the subject matter of Mason v. Mason, a decision of the Court of Appeal of New Brunswick.
There, the deceased died at the age of 53. He was survived by his mother, and his wife of 13 months. At first, the relationship between the mother and the wife appeared to be harmonious. The mother wanted the son’s cremated remains buried next to his father, and the deceased’s wife agreed. Later, however, the wife had a change of heart, as she came to believe that her husband did not have a good relationship with his father. She asked the cemetery to agree to disinter the remains and have them buried in another cemetery. As the original plot was owned by the mother, the cemetery required the consent of the mother. The mother refused to consent.
The wife then applied for and obtained letters of administration. This would normally cloak her with the authority to dispose of the body. The wife then applied to court to exercise this right. The court refused to assist her.
The applications judge held that the administrator had the right to determine the proper burial or disposal of the remains. However, this right was limited to carrying out those actions. The applications judge concluded that the remains were properly dealt with, with the agreement of the mother and the wife. At the time, there was no administrator, and therefore the next of kin could determine the disposition of the body, which they did.
The wife argued that as administrator, she had an ongoing right to determine the burial place. Support for this proposition was found in the Saskatchewan case of Waldman v. Melville. There, the deceased’s sister wished to disinter the deceased, over the objection of the executor. The court held that “The rights of the executor continue after the burial of the body, otherwise it would be an empty right … and those who oppose the executor could disinter the body as soon as it was buried.”
The applications judge distinguished the Melville decision. The rights of an administrator appointed months after burial did not entitle the administrator to disrupt burial arrangements agreed to by the person in her capacity as spouse.
The Court of Appeal upheld the applications judge’s decision. They went on to hold that once the body was properly discharged, it could not be moved, under s. 15 of the Cemetery Corporations Act, without the written consent of the Medical Health Officer or the order of a judge. The Court of Appeal stated that the powers conferred on the court by s. 15 of the Cemetery Companies Act were discretionary in nature. A judge to whom an application is made under that section is required to consider and weigh all the circumstances and make the order he or she considers appropriate. In this case, the court found no valid reason for moving the body.
Thank you for reading.
With the growing number of common-law relationships, it is important to recognize the difference in family structures one might encounter when assisting LGBTQ clients. Not only do these differences impact the type of estate planning that a practitioner might suggest, it should also serve as a reminder of the importance of fully informing clients of the differences in legal rights that they and their partner will experience as common-law spouses.
Below are three steps LGBTQ individuals can take to ensure their wishes are carried out and their loves ones are provided for.
(1) Prepare Power of Attorney Documents
First, LGBTQ individuals should ensure they have properly planned for potential incapacity by having power of attorney documents in place. If you experience a serious health problem that leaves you unable to make decisions on your own, it is important that you appoint a trusted friend or loved one who will be able to communicate your health care wishes. A Power of Attorney for Personal Care is a document that describes your health care preferences and names a substitute decision-maker who can make health care decisions on your behalf when you are no longer able to do so yourself.
Appointing an Attorney can be especially important for transgender individuals. Having a Power of Attorney is one way a transgender individual can ensure that someone who is supportive of their gender identity manages their health care decisions. This is one step an LGBTQ individual can take to ensure that they will have a strong advocate on their side in their time of need when receiving medical care.
(2) Make a Will
Second, LGBTQ individuals should ensure their testamentary documents make proper provision for their children. Relying on intestacy laws to provide for their children should be avoided at all costs. Careful will planning should be undertaken which takes into account the unique needs and structure of the family.
One way of ensuring that children are properly provided for is to name the individual children being benefited in the will. Rather than leaving an equal share of the estate to “my children” or “my grandchildren”, the will should specifically name the individuals to be benefited. Careful will drafting is one step an LGBTQ individual can take to ensure their loved ones are provided for after their passing.
(3) Provide Instructions for Funeral and Memorial Wishes
Finally, to make certain their legacy is left intact, LGBTQ individuals should provide their instructions for both funeral and memorial planning. At common law, the right to determine the manner and burial of a deceased lies with the executor of the deceased person’s estate. In order to ensure that unsupportive family members do not control the manner of burial after death, LGBTQ individuals will want to carefully choose an executor for their estate.
By following these three steps, LGBTQ individuals can rest easy knowing their wishes, and their loved ones, will be protected to the best of their ability.
Thank you for reading … Have a wonderful day.
Suzana Popovic-Montag and Jacqueline Palef
When a person dies, loved ones generally attend to the burial and memorial preparations without any thought as to who this responsibility falls upon and who has ultimate decision-making power. Where a dispute arises as to the how to say one’s final goodbyes, however, the courts are ready to provide an answer.
Courts have long held that the right to determine how a body is disposed of falls upon the estate trustee of the deceased’s estate. This right arises because the estate trustee is under a duty to ensure the deceased’s body is disposed of in a manner suitable to the estate left behind by the deceased. With this duty comes the corresponding right to possess the body for the purposes of burial. This right comes in priority of the right of spouses, children and other loved ones to decide how to dispose of the body.
For anyone who is in the process of preparing their wills, they hopefully give some thought and consideration as to the suitability of their chosen estate trustee. Ideally, they’ll ensure that their estate trustee is someone:
- likely to outlive the testator;
- willing to take on the task of administering an estate; and
- who will diligently bring all assets into the estate and attend to their distribution.
Testators may want to give some consideration for how the estate trustee will dispose of their body after death as well. This is particularly so as the disposition of one’s body is not something that one can validly provide for in a will (Williams v Williams (1882) 20 Ch D 659 (Eng Ch Div)). Hence, once deceased, testators are in the hands of the estate trustee, so to speak. Where a testator has any concerns that loved ones might fight over burial plans, then some further thought should be given to choosing an estate trustee who will act in accordance with the wishes of the testator.
Unfortunately, disputes over the burial of remains do come up. We’ve blogged on a few of these cases in the past, including the case of legendary soul singer, James Brown and the case of Leo Johnston, a slain RCPM officer in Alberta.
For anyone concerned about it, they may take some small amount of comfort in knowing that once in the ground, courts will be extremely cautious in disturbing a deceased’s (hopefully) final resting place (see, for example, Mason v Mason, 2017 NBQB 132).
Thanks for reading!
A study of 2,000 Brits, reported in the Mirror, shows that 79% of the population studied dislike the idea of burial. 59% of the population studied would prefer cremation over burial or other options. 21% would like to be cryogenically frozen. 16% are prepared to donate their body to science (56% are considering donating their organs to science).
(Canadian statistics show that in the 60’s, fewer than 5% of all Canadians were cremated. As of 2013, that figure grew to nearly 60%.)
Reasons given by the survey group for eschewing burial include:
- 38% dislike the idea of being eaten by bugs and maggots;
- 31% fear being buried alive;
- 21% are claustrophobic;
- 18% don’t want to incur the expense of burial; and
- 17% fear being disinterred by a stranger.
The study notes that while people have strong opinions on the disposition of their body upon death, most are not taking steps to ensure that their wishes are executed:
- 81% have not put their plans into a will; and
- 40% have not shared their wishes with families or friends.
As to funeral plans, most have not turned their minds to what type of service they would like:
- 90% have not given any thought to where their funeral will be held;
- 56% do not know if they want a religious service;
- 94% have not considered a guest list.
Why not? The survey found that:
- 21% can’t bear to think about death;
- 28% feel that they are too young to be making such plans.
Maitham Mohsin of Skipton Building Society, who commissioned the study, is quoted as saying “It just seems sad that our final opportunity to leave a positive mark on friends and family, for them to ‘hear’ from you one last time, is being delegated by so many of us. Let’s put a stop to this, and plan our own final big bash!”
Although one’s funeral and disposition of body plans are not binding on one’s estate trustee, a testator can appoint an estate trustee who agrees to honour those wishes. Discussion during lifetime can give peace of mind to the testator, and also make the difficult job of the estate trustee an easier one. A documented plan can also possibly avoid issues as between family members, who may each have different ideas of what the deceased may have wanted.
Have a great weekend.
Catto v. Catto illustrates some of the myriad of issues that can surround the administration of an estate.
There, the deceased died at the age of 50 without a will. He was survived by his wife of one year, and his mother and a brother.
The mother applied to the court to be appointed as Estate Trustee. The mother also sought an Order that the deceased’s ashes be exhumed, so that one half of the ashes could be buried in a family plot in Quebec, and an order that she be reimbursed for funeral expenses.
The brother sought an order for the inspection of a hockey card collection, so that he could determine which of the hockey cards in the deceased’s possession belonged to him.
The deceased’s spouse is alleged to have initially agreed to burial of the deceased’s ashes in the family plot. However, she subsequently obtained the ashes, and buried them in Peterborough.
In deciding what to do with the ashes, the court considered the question of who should be appointed as estate trustee. The estate trustee would be entitled to decide on the location and manner of burial of the ashes.
With respect to the appointment of estate trustee, the court considered the relevant statutes. The court noted that the surviving spouse was entitled to all of the property of the deceased’s estate on intestacy, and did not have any interest that was adverse to the estate, such as a claim for dependant support or other relief against the estate. Buttressing this, the court noted that the deceased’s mother was a resident of Quebec, and that s. 5 of the Estates Act prohibits granting letters of administration to a person not residing in Ontario.
As the deceased’s spouse was appointed Estate Trustee, she alone could determine the disposition of the ashes. The mother’s claim for half of the ashes was dismissed.
The deceased’s mother was entitled to be reimbursed for funeral expenses by the estate. The court rejected the argument that the mother had made a gift to the estate of the funeral expenses. To find a valid gift, the court requires i. an intention to make a gift; ii. acceptance of the gift; and iii. a sufficient act of delivery. Here, the first and second points were not present. There was no intention on the part of the mother to make a gift, and prior to appointment by the court, there was no administrator of the estate able to accept the gift.
The court reviewed evidence that the deceased and his brother collected hockey cards together for many years. The cards were originally in possession of the brother, but were then moved to the deceased’s residence as the brother was expecting twins and did not have space to store the cards. There was allegedly a list kept by the deceased as to which cards belonged to whom. However, this list could not be found.
The court ordered that the cards be inspected by the surviving brother. If the list could not be found, then the cards were to be divided between the surviving brother and the deceased’s estate “in a randomized manner”.
In a separate decision, the court addressed the costs of the parties. The surviving spouse claimed costs of $10,133 plus disbursements and HST. In light of the divided success, and an offer to settle made by the spouse, the mother and brother of the deceased were ordered to pay costs to the surviving spouse of $5,000 plus disbursements and HST.
- Make a will (it is, after all, Make A Will Month);
- if you are holding property for someone else, or if someone else is holding property for you, have clear, shared records.
Have a great weekend.
You advise and document estate plans for clients. You’re meticulous about detail and always do a thorough job. Is there anything you’ve overlooked?
Likely not when it comes to estate assets – but what about the softer, quality of life advice related to the family and estate of your clients? A few actions can not only smooth out the estate settlement process but also enhance the life of your clients today.
Here are five actions that all of us should consider before we die.
Tell your family your estate intentions
We’ve said it before: people can’t read minds and they don’t know what they don’t know. There can be many good reasons for the unequal treatment of family members under a will (such as a disability) but unequal can equate to “unloved” unless it’s explained. Before you put the final touches to your estate documents, let your family members know what you intend to do, and work out any issues now, because you won’t be around to work them out after you’re gone.
Pay for an extended family trip
Travel brings people out of their comfort zone and creates interaction that would otherwise never occur. It may not be all love and honey – family dynamics are what they are – but you may be pleasantly surprised at what happens when your adult children and their families interact outside of their day-to-day lives. The challenge of bringing people together can seem overwhelming, but it’s a challenge worth tackling. It doesn’t have to be an African safari (although those are great if you can afford it). Just make it two nights or longer at a place that’s away from anyone’s family home, cottage or chalet. If they can drop all plans and attend your funeral (they surely will), they can create time for a family trip that mom or dad wants.
Give some gifts during your lifetime
We all know the saying “you can’t take it with you.” As much as we believe it, it can be hard to act on it because we all (secretly) think we’ll live forever. But we won’t, and there’s joy in sharing now. So as the song says, “let it go”, or at least let some of it go. If you have surplus wealth, or surplus assets of value – such as artwork that will never fit in a newly downsized space – you can bring and experience great happiness in sharing things now, rather than after you’re gone.
Record some early memories
You’ve likely experienced this at a family gathering. You tell a simple fact about your early life and someone says: “I never knew you spent a summer in New York City.” It shouldn’t surprise any of us – our adult children can’t possibly know about the 30 or 40 years of our lives before they were born, unless we tell them.
So, record some memories – you’re bound to surprise both them and yourself with what you come up with. You can find some good tips on prompting those memories here: http://www.instructables.com/id/Record-Your-Familys-Oral-History-before-it-dies-/.
Make your funeral intentions known
It’s a hotly debated question: is a funeral for the living or for the dead? In most cases, it’s for both, which is why it makes sense to put some thought into what you envision for your funeral and then talk to your family to work towards a plan that everyone can agree on. There are different levels of pre-planning, both formal and informal, but having the wishes of you and your family documented can go a long way toward a smooth process at a difficult time. For those in Ontario, the provincial government provides a good overview of your rights related to pre-planning with a funeral service provider: https://www.ontario.ca/page/pre-plan-and-pre-pay-final-arrangements.
Thank you for reading!