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,
The standing joke about cemeteries is that they are so popular, people are dying to get in. Apparently, some people have to go to greater lengths than others, as was recently demonstrated in the peculiar case of Smith v. Cataraqui Cemetery Company, 2013 ONSC 2468 (CanLII).
While estate practitioners sometimes have to wrestle with the fact that clients can be loath to make plans about their ultimate demise, this case dealt with two people who had exceptional interest and foresight in this respect (albeit, with perhaps some oversight in their estate planning). In 1869 (that is correct, not a typo), brothers Joseph and Darius Smith purchased burial lots in a cemetery near Kingston, Ontario for the then princely sum of $100.00. The plots permitted for the burial of up to 64 people. In return for payment of the said funds, the two brothers were presented with a Deed to the lots (the “Smith Family Lots”).
It should be noted that, in general, when a person wishes his or her remains to be buried/interred at a cemetery, they purchase not the land on which they wish to be interred, but rather the rights to be interred in a specified lot or plot of land (i.e. the interment rights).
The Deed to the Smith Family Lots confirms the brothers’ purchase of interment rights in respect of certain plots, and states (emphasis added):
to have and to hold the above granted Premises to the said Darius Smith and Joseph Smith and their Heirs and Assigns forever subject, however, to limitations and conditions with the privileges specified in the rules of the said cemetery…that they are actually and lawfully seized of the Land hereby granted
In the case, the Court was called on to answer what was meant by the word “Heirs” in this deed, and to consider the application of the relatively new Funeral, Burial and Cremation Services Act, 2002, SO 2002 C.33 (enacted July 1, 2012) to this matter.
The applicants in the case were three direct descendants of the two progenitorial Smiths. They sought permission to ultimately be interred in the Smith Family Lots (where their parents and other Smiths had previously been interred). The operator of the cemetery refused, stating that the original Smiths remained as the registered interment right holders of the Smith Family Lots and that the cemetery was never notified of the transfer of their interment rights. The cemetery required written documentation to prove the applicants’ standing as heirs-at-law and/or to prove a transfer of interment rights to the applicants.
The cemetery argued that it was merely enforcing the position given to it by the Registrar of Cemeteries of the Province of Ontario pursuant to the Funeral, Burial & Cremation Services Act. The Registrar’s position was that the various lineal heirs of original Smiths must prove which of them is the interment right holder(s). In the absence of such proof, the Registrar argued that theAct required that the matter must be determined by a Court after all potential heirs have been given notice of the Court proceeding.
The fact that the cemetery had allowed four generations of Smiths to be buried, without previously raising such issues or requiring such proof, did not sway either the cemetery or the Registrar. They remained adamant that no one would be put in ground on their watch. So, off to court the applicants went.
Thankfully, reason prevailed. The Court held that the position taken by the Registrar and the cemetery was, frankly, “ridiculous” (a technical term, as used by one commentator), and declared that the three Smiths in question could be buried at the Smith Family Lots (although presumably not until they died!). The Court, without difficulty, found that the applicants were the lineal descendants of original Smiths and, therefore, qualified as “heirs” under the terms of the Deed. Specifically, the Court held that "heirs" was to be interpreted broadly, such that it would include lineal descendants or family members of lineal descendant of either brother.
Applying the law of estoppel to the case, the Court found that the cemetery’s silence over the years and the acts accompanying the interment of 33 Smiths in the Smith Family Lots since 1869 without formal proof that they were interment right holders, prevented the cemetery from now insisting the applicants prove they are the interment right holder of the said lots. The cemetery was, therefore, estopped from changing its practice midstream.
Considering the application of the Funeral, Burial & Cremation Services Act to the matter (which provides that only interment right holders or those legally assigned interment rights can be interred in disputed plots), the Court held that the Act did not retroactively apply to the Deed to the extent that it would remove substantive rights granted to the “heirs” of the original Smiths by the Deed.
A point worth considering for estate planners is that there was no evidence that the original Smiths transferred their interment rights while they were alive or devised their rights in their Wills. The cemetery argued that interment rights, if not specifically transferred by the original Smiths during their lifetime, would have been transferred upon their death pursuant to the residue clause of their respective Wills (if no specific provision was otherwise made) or, in the absence of a Will, by way of the laws that relate to intestate estates. This led, in part, to an argument by the cemetery that perhaps the only heirs entitled to be buried were the immediate descendants of the original Smiths. However, the Court made short work of this in observing, somewhat slyly, that it is unlikely that the original Smiths would have expected there to be 64 candidates for the spots from their immediate descendants and more likely intended future generations of Smiths to be buried in the Smith Family Lots.
Also worth noting is that the Court ruled that it was not necessary to serve/notify all possible descendants of the original Smiths (potentially one thousand to two thousand individuals) in order to assign the remaining 31 plots based on their respective priority (perhaps imagining what would happen if a public quest was put on to find anyone named “Smith” who might have a claim!). Rather, the Court decided that the right to the plots will be assigned on a “ first-come first-serve basis,” for those who can prove their patrimony to the original Smiths.
Thanks for reading. Enjoy the weekend!
The body of King Richard III of England was conclusively identified earlier this week through the use of DNA evidence. The King’s body was located on September 12, 2012, beneath what is now a parking lot in modern day Leicester in the UK. He died in 1485 at the Battle of Bosworth Field, the last English King to fall in combat.
After his death on the battlefield, the King was buried at Greyfriars Church in Leicester. A now discredited legend had suggested that his body had been thrown into a nearby river. The location of the church had been lost to history until the site was rediscovered last year.
The archaeological discovery has received much attention from the Canadian media because of the involvement of Canadian Michael Ibsen in the identification of the long lost monarch. Michael is the son of the late Joy Ibsen, a 16th-generation descendant of the King. He provided a cheek swab DNA sample for comparison to the mitochondrial DNA from the remains. Humans inherit their mitochondrial DNA exclusively from their mothers, which makes it useful for tracing maternal lineage.
The BBC reports that the cities of York and Leicester are currently embroiled in a dispute about who has the right to King Richard’s remains. York is the place where Richard met his wife. His son is buried in the city as well. Those in favour of Leicester argue that the body had been resting there for five hundred years. Further, the exhumation was allowed on the grounds that the body would be reburied there. Other arguments rely on the King’s will, the existence and content of which is a matter of dispute.
In Ontario, the determination of where an individual is to be buried depends not on the will, nor does it depend on historical or familial connections to one place or another. The estate trustee is empowered with making the decision of what to do with the remains of the deceased. Although burial instructions may be included in a will, they represent only the wishes of the deceased and the decision is ultimately in the discretion of the estate trustee.
When preparing a will, this is another reason that a testator should be very careful in choosing the right estate trustee. Confusion over burial could result in a dispute between family members – a tragedy of Shakespearean proportion.
Legal and financial professionals often talk about estate planning. It is important for the orderly transfer of wealth from one generation to the next to ensure that one’s will and property are properly organized, so that the beneficiaries of one’s estate will know what to do. This may prevent the infighting, uncertainty and confusion that can lead to litigation. There is one important thing, however, that cannot be disposed of by will – your body.
Some of the ugliest fights we encounter have to do with disagreements over funerals and burial. These decisions are deeply personal, and are often imbued with religious or spiritual importance. When trouble erupts within families over arrangements for the burial of their loved ones, these matters very quickly balloon into divisive, bitter disputes. In order to avoid this, it is of the utmost importance to make appropriate arrangements during your lifetime.
The law in Ontario has long been that it is the estate trustee who has the responsibility and the obligation to make arrangements for burial. Moreover, as a human body is not property, any wishes for burial expressed by way of will are merely precatory and are not legally enforceable. This creates a problem – how do you ensure that your wishes for burial will be followed?
One way to avoid fights over funeral or burial arrangements is to choose your estate trustee carefully. This might be another good reason to choose a spouse, sibling, child, or friend who you trust to carry out your wishes.
It may also be helpful to include your wishes in writing in your Will, or somewhere else that your family may find it. Even if not binding on the estate trustee, it may help to guide him or her in making the right decision, and may prevent those left behind from arguing over what it was you might have wanted.
As with most disputes, communication is critical to preventing quarreling later. Discuss your wishes with your family while you are alive and well. Make sure that everyone knows how you want your post-death arrangements to be handled, and why you have made your choices.
The range of choices for what to do with your remains is ever-expanding. As technology improves, more creative ways to deal with the issue of burial continue to arise. Adding QR codes to your headstone is now a possibility. Ian Hull has previously blogged about having your ashes chemically transformed into diamonds.
Whatever your wishes might be, traditional or high-tech, religious or unconventional, make sure that they are known to your estate trustee, and that your estate trustee is someone that you trust to follow them.
During a recent drive, I tuned into an episode of CBC Radio’s Tapestry, an interesting program that focuses on issues of faith, spirituality and religion. This particular episode featured stories and interviews on the subject of ashes and cremation. As an estate litigator, a profession that is intrinsically linked to death and dying, the episode grabbed my attention.
Of particular interest was a segment called “Ashes Through the Ages.” This portion of the show was comprised of an interview with Professor Douglas Davies of the University of Durham in England. Professor Davies is an authority on the history, theology and sociology of death and co-editor of the Encyclopedia of Cremation.
The interview deals mostly with the cultural history of cremation, a practice that goes back to ancient times and one that differs immensely across cultures and geographic locations. In India for instance, cremations are often very public outdoor rituals. In the West however, cremations are extremely private affairs. The body is burnt indoors in a private facility and the ashes are provided to loved ones so that they may perform a variety of personal rites and rituals.
In our society, ashes are usually either kept in an urn in a surviving loved one’s home or scattered in a place that holds some personal significance to the deceased. I’ve heard many touching stories of ashes being scattered in places such as a body of water where the person who has passed liked to fish, a golf course where they spent many hours playing golf, or simply a park where they liked to sit and enjoy nature.
Professor Davies mentioned one particular cremation practice I had never heard of before: turning a loved one’s ashes into gemstones. Because ashes are essentially carbon, they can be compressed into gemstones and turned into jewelry for a surviving loved one to wear as a reminder of or physical link to the deceased.
While you might think that this is a new idea, Professor Davies pointed out that people have been putting deceased loved ones’ locks of hair into lockets worn as necklaces for centuries. In my mind, this is merely a more modern and technologically advanced version of that practice. It’s also much more expensive. These “memorial diamonds” can range from $3,500 – $20,000 depending on the desired size of stone. Also, for animal-lovers, they can be made from a beloved pet’s ashes as well.
To my surprise, when I mentioned to a colleague that I had just heard about this practice, he informed me that his mother had in fact requested that her ashes be made into a “memorial diamond” upon her passing. She likes the idea of her ashes being turned into a shiny diamond as opposed being in an urn or in nature.
While I don’t see this practice becoming as commonplace as other cremation rituals, it is an option that some might want to consider when planning for their deaths. If you do find yourself wearing a ring made from a loved one however, make sure to be extra, extra careful around sinks and toilets.
On a recent episode of Keeping Up With The Kardashians matriarch of the family Kris Jenner decides to plan ahead for the entire family’s funeral. She takes the family to Hollywood Forever cemetery and considers building a private family mausoleum. She even goes as far as to climb into a luxury coffin to test it out. Kris said that pre-planning her funeral arrangements was a gift to her family, to relieve them of the burden of having to make those decisions at a time when they will be grieving her death.
The episode made me think about pre-arranging and pre-paying for one’s funeral – is it a good idea?
One article sets out the advantages and disadvantages of pre-paying for your funeral.
The advantages listed are:
- If they are eligible funeral expenses, as defined in section 148.1 of the Canada Tax Act, than any growth is non-taxable;
- It relieves the burden on your family of making these difficult planning decisions;
- The ability to ensure you will have your own wishes carried out. Requests for certain funeral arrangements found in Wills are not enforceable at law – so if there is not enough money in your estate to carry out your wishes, they can be ignored. If you want to spend the rest of eternity in a private mausoleum like the Kardashians, this may be the only way to guarantee it actually happens;
- If you have enough money to pre-pay for a funeral, then you can do it without any hassles. It’s not like buying life insurance to cover your funeral expenses, where medical testing or age restrictions may disqualify you;
The disadvantages listed are:
- They are a bad investment. The interest generated is minimal and you will have little or no choice in how your money is invested. From a purely financial perspective, they are not the wisest choice;
- You could fall victim to a scam. You have to take certain precautions to be sure that your money is protected. This includes making sure that if you move away or change your mind you can transfer your plan to another funeral service provider, or get a full refund.
The article concludes that investing your money in a Tax Free Savings Account is a better option than pre-paying for your funeral. That way you have control over how the money is invested and you can still prearrange your funeral so that your wishes are carried out how you’d like.
The article is written from a personal finance perspective, so although it is probably true that pre-paying for your funeral does not make good financial sense, if you are the type of person who wants to know that their wishes will be carried out exactly, then pre-arranging your funeral may not be enough.
Thanks for reading!
Moira Visoiu – Click here for more information on Moira Visoiu.
Cremation Solutions has come up with “a new and exciting way to memorialize your loved one.”
The company offers a number of cremation urns and other mementos. One of their most notable products is the “Personal Cremation Urn”. The company offers to create a custom cremation urn in the image of your loved one, favourite celebrity, hero, or even President Obama.
The urns are made from a tough polymere compound, and come on a solid marble base. The company will create the urn using a photograph or two of the subject.
Cremation Solutions says that the urns can have hair added digitally for short haired people, or, for longer haired subjects, a wig can be added.
The urns come in two sizes: full size, 11” tall (to hold the ashes of an adult) or keepsake sized, 6” tall, to hold a portion of the cremated ashes. Full size is $2,600 US, and keepsake sized is $600 US. Delivery is free.
Thank you to Gerry Beyer and his blog Wills, Trusts and Estates Prof Blog for the reference.
Have a great week.
Paul E. Trudelle – Click here for more information on Paul Trudelle.
At present, the City of Toronto can provide help with funeral costs to Toronto residents who do not have enough funds in their estate to fully cover funeral expenses.
The program provides assistance for funeral services, burial services or cremation services. With respect to funeral services, the program can pay for the transfer of the body. If there is to be a burial, the program can pay for the purchase of a burial lot, or if the deceased owned a lot, can pay for the opening and closing of the grave. If there is to be a cremation, the program can pay for the cremation, and a standard urn, and the cost of scattering the remains in a cemetery.
Eligibility is based on the financial situation of the deceased and his or her spouse at the time of death. A caseworker will be assigned, who assesses the assets, income, RRSPs and life insurance of the deceased.
If the deceased person was on Ontario Works, or ODSP, the funeral home can assist in obtaining benefits. (The Province of Ontario can also provides assistance to those on ODSP or Ontario Works.) If the deceased was not on Ontario Works or ODSP, the family or estate trustee should contact the City of Toronto’s Employment and Social Services office. The Employment and Social Services office must be contacted, and must authorize services before a contract is signed with the funeral home or cemetery.
For more information, see the City’s website, here, or call 416.392.1666.
Thanks for reading.
Paul E. Trudelle – Click here for more information on Paul Trudelle.
Ever dream of being an astronaut? If you were not one in life fear not, there is still the chance that you can travel in space after your death. According to a Toronto Star article by Nicole Baute, it would appear that when it comes to burial possibilities, the sky is not the limit.
Celestis Inc. is a company co-founded by commercial space age pioneer Charles Chafer that specializes in “Memorial Spaceflights”. The ashes are placed in aluminum capsules inside a Celestis spacecraft, which is a small cylinder that hitches a ride on a rocket heading elsewhere. The spacecraft breaks away from the rocket once it is deep in space and then orbits the earth for anywhere from a few years to several hundred years, depending on how far into space it goes. Solar wind and the natural degradation of the orbit eventually pull the spacecraft back into the earth’s atmosphere, where it incinerates like a meteor upon contact. The cost is anywhere from $695 to $12,500 $US.
If space travel isn’t for you, Baute reports on other unconventional options. Perhaps you would like to have your ashes pressed into a vinyl record for family and friends (the sound quality is a little scratchy and you might have to supply the turntable) or even an attractive paper weight. Those who are concerned about the environment can have themselves composted. As for me, I think I’d like to be turned into a diamond.
Considering all the burial options out there, with a little imagination, you can go to infinity and beyond!
Sharon Davis – Click here for more information on Sharon Davis.
A cemetery in the UK is dealing with the awkward question of what to do about a man who was buried in the wrong grave.
The 26 year old was vacationing in Spain when he was stabbed to death. After being returned home to Britain, he was inadvertently laid to rest in a grave reserved for the widow of another man (the widow and her late husband had bought side-by-side plots so they could be buried next to each other).
The two families have been unable to reach consensus as to what to do. The murder victim’s family, who had to wait two years for the body to be returned to them due to the criminal investigation, wants the man to remain where he’s been buried. On the other hand, the widow, who had bought the plot with her husband so they could be buried together, wants the body exhumed so that on her death she can be buried where she, well, paid to be buried.
At this point, as the families can’t agree it appears that the Church court for the Diocese of Lichfield in England will make the final decision in the new year.
What a horrible situation – clearly neither family is at fault, and, no matter the decision, someone is going to wind up devastated.
On a more pleasant note, have a great weekend!
Megan F. Connolly
Megan F. Connolly – Click here for more information about Megan Connolly.