A co-worker recently passed along this ESPN article chronicling the storied life of Ted Williams, arguably one of the greatest baseball players to have ever played the game. While I must admit that my love for sports stems from hockey and the beautiful game of soccer, as Estates lawyers, my co-worker and I were drawn to the issues surrounding the Last Will of Ted Williams and his burial wishes.
According to this Daily Mail article, Williams executed a Last Will and Testament in 1996 apparently indicating that he wanted to have his body cremated and his ashes sprinkled around his Florida Keys fishing grounds “…where the water is very deep”.
Notwithstanding the contents of Williams’ Last Will, it appears that some of his children approved the decision to have Williams cryogenically frozen. It seems that the motivation in part was a result of the vast amount of literature read by Williams’ son including The Prospect of Immortality which promotes that the “freezer always trumped the grave”. In addition, after his passing, his children produced a note signed by Williams and dated November 2, 2000 that his children “…and Dad all agree to be put into bio-statis after we die. This is what we want, to be able to be together in the future, even if it is only a chance”. Nonetheless, it remains unclear as to what Williams actually wanted.
Upon the passing of Williams, his body was flown to a cryogenics facility where Williams head ($50,000) and body ($120,000) were separately frozen and stored.
As a result of these actions, one of Williams children commenced a petition seeking the return of her father’s body to comply with the wishes set out in the Last Will. This claim was later withdrawn and to this day, Williams body remains frozen.
At this point, any Ontario Estates lawyer is probably reminding themselves that in Ontario, burial instructions in a Last Will are merely wishes and not binding. As a refresher, see this Hull & Hull blog with respect to the burial decisions surrounding Nelson Mandela.
Also of interest, it appears that Williams created an insurance trust for the benefit of his children only to be paid on the 10th anniversary of his death. This trust has now been dissolved.
The legendary Top 40 Countdown DJ, Casey Kasem, passed away in June, 2014 after a dramatic Hollywood style guardianship dispute between Casey’s wife, Jean Kasem, and his daughter from a prior relationship, Kerri Kasem. The “dad-knapping” of this famous American from California to Seattle while he was still alive has already been covered by our very own Jordan Atin here for those of you who are interested in the first volume of what is turning out to be a never-ending battle between Jean and Kerri.
However as a quick recap, Casey was taken from a nursing home in California where he was kept alive through a feeding tube and transported to a friend’s home near Seattle against all medical advice. Jean allegedly disconnected the feeding tube herself and removed Casey from the nursing home without notifying anyone else in Casey’s family. Casey was eventually located after a nation-wide man hunt and Kerri was named as his conservator (the American equivalent to a guardian). Casey then passed away shortly in Washington after a Court gave permission to remove Casey from life support.
Now fast forward to December, 2014 and Casey’s body seems to have found its way to…
Oslo, Norway (!)
While Kerri’s claims that Casey wished to be buried in Glendale California, his home for 53 years, Jean has removed Casey’s body from the U.S.A. altogether. According to Forbes, Jean used her authority as Casey’s next of kin to fly him to Oslo, Norway… through Montreal, Quebec.
Kerri claims that Jean’s motivation to bury Casey in Norway is to evade criminal, elder abuse investigations involved in the “dad-napping” incident. In an attempt to lay her father to rest in California, Kerri wrote a letter to Norwegian officials signed by Casey’s family and friends and she also started an online petition to stop her father’s burial which gathered 24,000 signatures. While Kerri appears to be successful for the time being in preventing the burial of her father in Norway, his body remains in Oslo today.
As dramatic as the story of Casey Kasem has turned out to be, it is important to be mindful that a person’s desired burial arrangements are not binding on his or her estate trustee in Ontario. Even if a testator has expressed his intention to be buried in a certain place and in a certain manner, that intention is only a wish and it is within the discretion of the estate trustee to provide alternate arrangements as he or she deems appropriate. Only in rare cases have we seen case law where family members were successful in challenging an estate trustee’s discretion with regard to the burial arrangements.
One can’t help but imagine how different the Casey Kasem story would have been if he was an Ontario resident with a Will which named his daughter Kerri as the estate trustee.
Thanks for reading!
The death of Larry Frazer has been in the news this past week. His memorial had been booked for September 29th at the St. Patrick Parish Centre hall, when the family received a phone call indicating that the Church had cancelled the booking on the basis of the late Mr. Frazer’s obituary photograph, which depicted him wearing a t-shirt sporting the title of the popular TV series “Sons of Anarchy“. The show is about the criminal exploits of a fictitious biker gang. The decision was apparently made by a volunteer and the Church has apologized for the incident. The family suspects that the volunteer must have misunderstood the t-shirt and mistakenly presumed that Mr. Frazer was a member of a real biker gang.
This story highlights the importance of some of the non-financial aspects of estate administration, which include funeral planning, the crafting of obituaries, and the wording of monuments. These issues can be very contentious, and can become sources of disagreement and bitterness amongst the family of the deceased.
At law, it is the estate trustee named in the will of a deceased person who has the responsibility of making appropriate and dignified arrangements for his or her funeral, burial, cremation, etc.. Although a will may provide direction to the estate trustee about funeral arrangements, the deceased’s wishes are not binding on the estate trustee. In practice, these wishes are usually followed. Where there is no will, or where the will cannot be immediately located, responsibility will usually rest with the family to make a decision.
Connected with the estate trustee’s responsibility for dealing with the body of the deceased is the duty to erect a grave marker that is appropriate for the deceased person’s station in life and the size of his or her estate. It is also up to the estate trustee to decide what the inscription on the grave marker should say, so long as it is accurate and dignified.
Decisions about disposition of the body, funeral and memorial services, religious observances, obituaries, and the inscriptions on grave markers are deeply personal to the family and friends of the deceased. Where opinions on what the deceased would have wanted diverge, tempers may flare. This can lead to conflict and even litigation within a family. When challenges arise, it is important for family to work together to solve them.
As with most problems, the best way to avoid these difficulties is communication. As part of the estate planning process, consideration should be given to these issues. A person’s wishes should be discussed with his or her family (and estate trustees) while living, so that he or she can explain what he or she has chosen and the reasons for it. Though not binding on the estate trustee, wishes should be recorded in a will or otherwise. These steps will help the family to understand what to expect and to avoid disputes about the deceased’s wishes.
Mr. Frazer’s story shows that there can always be unexpected difficulties when it comes to making arrangements following the death of a loved one. My deepest sympathies go out to his family and friends.
Following the death of a resident of Hamilton, Ontario several weeks ago, readers of newspapers in which his obituary was published found themselves in for an unexpected laugh.
As requested by the man prior to his death, the conclusion of his obituary read:
It was Terry’s last wish that his pallbearers be the Toronto Maple Leafs so that they could let him down one last time.
Such a wish made by a person prior to their death, whether expressed orally or in writing within a self-written obituary or a Last Will and Testament, is not legally binding on his or her estate trustees or family members who will plan the funeral. Ontario case law supports the authority of an estate trustee to make any funeral and burial arrangements, so long as arrangements are not “inherently inappropriate”.
Even in situations where an individual goes to lengths to plan his or her own funeral, an estate trustee has discretion to make alternative plans, with no obligation to follow the instructions left behind by the deceased.
Nevertheless, the Leaf fan’s survivors obliged and his pallbearers donned Leafs jerseys as they carried the man’s casket through the cemetery, letting him down one last time.
Have a great weekend.
Teenager Rueshad Grant was tragically killed at last year’s Toronto Caribbean Festival (Caribana) when he fell underneath the wheels of a float.
Funeral costs are typically paid out of the Estate but when the deceased is a teenager, their assets are usually insufficient to cover the costs of a funeral. Under these circumstances, the family will often step in to pay for the funeral.
According to this story in the Toronto Star, the incident was considered a motor vehicle accident. Because Grant’s family had no auto insurance, only the float driver’s insurance company paid money towards the costs of the funeral.
Around one-half of the cost of the funeral was paid and the funeral home has now issued a statement of claim to recover the other half, plus interest, from Grant’s family.
Grant’s relatives claim that one of the funeral home’s employees “advised the mother of deceased, Shaundell Grant, and (his step father) Robert Grant, that he knew a lawyer that could obtain a very large settlement for the Grants with the Scotia Bank and the City of Toronto.”
They further claim that the employee took advantage of the family’s vulnerability and that the employee’s actions constituted fraudulent misrepresentation. It was the family’s understanding that the funeral home would allow them more time to pay for the funeral.
As the litigation is at an early stage, the allegation has not been proved in court. Nevertheless, the case is instructive.
First, in Ontario, only lawyers and paralegals (under certain circumstances) are qualified to give legal advice. Do not rely on an unqualified individual’s assessment of your chances to recover damages, particularly if they are offering you an expensive service at the same time. Always seek independent legal advice from a qualified legal professional.
Second, ensure that the written agreement you are signing accurately reflects the understanding you believe you have reached with the funeral home. While oral assurances contrary to the terms of the written contract can prevail over the written terms, it may require costly proceedings to obtain a declaration to that effect in court.
When a family member unexpectedly dies, it is difficult to think about financial matters but it is important to do so. Prudent funeral planning serves to avoid litigation, which would otherwise compound the trauma of losing a family member.
Thank you for reading,
The Last Will of Napoleon Bonaparte states, “…It is my wish that my ashes may repose on the banks of the Seine, in the midst of the French people, whom I have loved so well”. It is interesting to note that Napoleon wishes, and not instructs, this type of burial. In Ontario, there is no legal requirement for the estate trustee to follow the wishes expressed by the testator. Even if a Will includes burial instructions, these are merely precatory and are not binding on the estate trustee.
As such, the estate trustee has the paramount legal authority to determine the place and manner of burial. Below, I highlight some interesting, and alternative, burial options an estate trustee may want to consider.
Space Burial – For the price of $1,990 Elysium Space will send cremated remains into space. The remains will launch into low orbit, and circle the earth for a few months before re-entering the atmosphere. A mobile app is even included which shows, in real time, the spacecraft location and how the world looks from the deceased’s perspective. This app professes to be the personal gateway to your loved one, resting in peace while the Milky Way is magnificently rising over the celestial horizon.
Natural Earth Burials – A natural earth burial is the burying of a body in a biodegradable coffin or a shroud in a shallow grave without the use of chemicals. This enables a more natural decomposition. The body is marked with a tree, not a tombstone, and the exact location is registered using a global positioning system. Benefits include the fact that the body decomposes faster, there is no pollution of the soil from a coffin, and less land is used.
Personalized Coffins – In order to ensure that funerals are more personal and special, a company based out of Australia offers to make personal, emotional, and environmentally friendly coffins. This includes an option to decorate the coffin yourself. Apparently, this is very popular in Ghana, where customized coffins include a Mercedes Benz, fish, and wrench.
Recently, an innovative company launched a product that is truly turning heads – or rather, headstones – into living memorials from which the deceased can now create an interactive memorial legacy from beyond the grave.
QR Codes are the two-dimensional bar codes which are becoming ever more omnipresent in today’s advertising. These pixelated square images are often found in the corners of street advertisements, on public transport and even consumer products themselves. These simple barcodes allow anyone with a modern smartphone, or other mobile devise, to scan and be redirected to the advertisers’ or products’ web page. Now, a unique application of QR Codes allows for grave site visitors to scan the headstone of their loved ones and be redirected to a memorial page or archive site of the deceased’s, or their survivor’s, choosing.
With the increasingly common trend of separation of family members due to our progressively mobile population, some are turning to innovative ways to keep connected to their ancestry and heritage. The use of products such as interactive headstones allow loved ones to post obituaries, family history and photos to web pages accessible by a simple swipe over a QR Code imbedded into the headstones of their deceased family members.
When planning for a final resting place, many may find this alternative a desirable, contemporary approach to memorializing their legacy, through a combination of past and modern technologies, in a way that allows those passed to remain connected with their families in death.
As this technology develops and becomes increasingly common, it is quite possible that future generations will gain a digital legacy of their ancestors, accessible online, for many years to come.
Thank you for reading!
It is not often that the sports section and the estates world overlap. While looking through the sports section a couple of days ago however, one story in particular managed the rare crossover. The story focused on the Philadelphia Phillies AAA affiliate, the Lehigh Valley IronPigs, and the unorthodox contest which they had announced. The prize? Your dream funeral paid for.
As you can expect, the contest got a lot of attention in the press. As jokingly put by the IronPigs General Manager, “it’s one of our best out-of-the-box promotions. Or maybe I should say one of our best ‘in-the-box’ promotions”.
In order to enter the contest, fans had to submit an essay describing their ideal funeral and why they deserved to win. In total approximately 50 people submitted entries, some serious, some not-so-serious (one entrant provided that their dream funeral would have a bouncer who would eject any patrons who were not sufficiently mournful).
The IronPigs subsequently announced the winner of the contest to be a 64 year old lifelong baseball fan who was recently diagnosed with ALS. When asked about his diagnosis of ALS, the winner jokingly stated “I’m not a Yankee fan, but I told them to put a no. 4 on me” (the number famously worn by fellow ALS patient, Lou Gehrig).
When asked why he entered the contest, the winner stated that the prize made it so that there was one less thing that his family had to worry about as the disease progressed. He importantly added however, “I plan not to use this for a while.”
Maybe the IronPigs were on to something after all.
Have a great weekend.
While funerals are generally conservative and solemn affairs, the coffin makers at England’s Crazy Coffins have been trying to prove for the last 25 years that this does not always have to be the case.
Crazy Coffins is just one of several companies which specialize in making coffins in just about any shape or design you can think of. Do you consider yourself to be a spicy little number? How about being interred in a six foot long Habanero pepper? Can’t imagine life without your cell phone? No worries, they can arrange for you to be buried in a six foot long replica. Other options include fish, a Rolls Royce, a Viking boat, and a skateboard, just to name a few.
The idea of making your mark after you are gone is hardly new. Indeed, the word Mausoleum, comes from the tomb of King Mausoleous of the ancient city of Halicarnassus, whose tomb was so grand, that it was and still is considered one of the seven wonders of the ancient world. But I digress…
The modern fascination with exotic coffins is best seen in Ghana, from where the enterprising Crazy Coffin creators draw their craftsmen. According to a recent article in the UK’s Daily Mail, many Ghanaians believe in an afterlife and regard deceased ancestors as more powerful than the living, which beliefs have driven some to make exotic resting places for their loved ones. The shapes of Ghanaian caskets often reflect the deceased’s profession or links to certain clans.
With an exotic coffin, the opportunities for those who enjoy the thought of planning for the end of life with a little irony seem truly endless. Instead of having a final nail in your coffin, your coffin could instead be a nail.
Of course the final irony is this: As discussed in my blog earlier this week (“Who decides what happens at your funeral?”), in Ontario, the executors of your Estate do not have to follow your wishes with respect to the manner of your burial. So if you are committed to the idea of a six foot long replica of The Edmund Fitzgerald as your final resting place, it may be a good idea to let your executors in on the joke ahead of time.
Thanks for reading. Enjoy the weekend,
As you may know, a feud recently erupted in Nelson Mandela’s family respecting where the former South African president will eventually be buried. While Mr. Mandela remains in critical condition in hospital, his family’s very public battle played out in the Courts and the national and international media last week. While Mr. Mandela’s family dispute has been mired in scandal, such family disputes concerning funeral and burial wishes are not uncommon.
In Ontario, where a person dies leaving a Will naming an estate trustee, the estate trustee has the paramount legal authority to determine the place and manner of burial. There is no legal requirement for the estate trustee to follow the wishes expressed by the deceased, or those of the family of the deceased. While Wills typically include burial instructions (such as a wish for cremation or to be buried in a particular cemetery), such instructions are precatory and not binding on the estate trustee. The estate trustee has the power to decide the place and manner of the burial, even in the face of objections from family members. Nonetheless, Court proceedings may be commenced by family members who have different views and priorities, particularly where religious beliefs become an issue, than the estate trustee. These family members may be shocked to find that their deeply held beliefs will most likely be trumped by estate trustee’s power to decide, provided that the estate trustee ensures that deceased’s remains are disposed of in a decent and dignified fashion.
Where a person dies without Will and an estate trustee has not yet been appointed by the Court, the deceased’s next of kin can direct the manner of burial. However, when there is a dispute amongst the family members respecting the manner of burial and a compromise cannot be reached, Court proceedings may also be commenced. Typically in such cases, there will be competing claims between family members seeking to be appointed as the estate trustee, so that they may be empowered to direct the manner of the burial.
This was the situation in the Ontario case of Buswa v. Canzoneri 2010 ONSC 7137. In the case, the deceased died without a Will, and was survived by seven siblings. After the deceased’s death, an individual came forward alleging that she was the deceased’s daughter (this was denied by the siblings). A disagreement arose over the proper manner of burial of the deceased’s remains. The deceased was a member of the Whitefish River First Nation, and his siblings wanted him to be buried in accordance with traditional Anishnabek practices. The (alleged) daughter argued that at the time of his death, the deceased was no longer an adherent to the Anishnabek belief system and had wanted to be cremated.
The siblings brought a motion seeking the appointment of an estate trustee during litigation for the limited purpose of disposing of the deceased’s remains. Section 29(1) of the Estates Act provides that where there is no Will naming an estate trustee, the Court has the discretion to appoint (a) the deceased’s spouse/common law partner; (b) the deceased’s next of kin; or (c) the partner and the next of kin.
Although “next of kin” is not defined in the Estates Act, in the case, Justice Stinson considered definitions of the term found in various legal texts and determined that it referred to the person most closely related to the deceased. Stinson J. then considered whether he was satisfied that the (alleged) daughter was the deceased’s natural child.
While there was no DNA evidence and the deceased and the (alleged) daughter did not meet until 2008, Stinson J. found other evidence to suggest a father/daughter relationship (such as that the deceased had signed a statutory declaration that he was the respondent’s father). He decided that on a balance of probabilities that she was the deceased’s natural daughter. Stinson J. then concluded that as the deceased’s natural daughter, she qualified as his “next of kin” and, accordingly, appointed her as estate trustee during litigation for the purpose of dealing with the deceased’s remains.
Nelson Mandala’s family dispute serves as an important reminder to choose an estate trustee whom you trust to make your burial decisions, and to clearly advise your estate trustee and family members about your burial wishes.
Thanks for reading,