One of the primary and often urgent duties of an Estate Trustee is to dispose of the deceased’s body. Often, issues arise with respect to the proper disposal of the deceased’s remains: how it is to be done, and by whom. These issues are exacerbated when the deceased dies intestate. No one has the immediate authority to make the necessary decisions.
The difficulties that can arise are illustrated in the companion decisions of Re Timmerman Estate, 2020 ONSC 3424 (CanLII) and Re Timmerman Estate, 2020 ONSC 3425 (CanLII).There, Marguerite died on October 16, 2019. She was survived by a daughter, Shannon and a son, Craig. Craig died shortly thereafter, on November 12, 2019. Both died without a will and with only nominal assets.
Marguerite’s sister (Craig’s aunt) applied for a Certificate of Appointment as Estate Trustee for both estates. However, she did not have Shannon’s consent or a Renunciation from Shannon, as required by the Rules of Civil Procedure. She applied to the court to dispense with these formalities.
There was evidence before the court that Marguerite wished to be cremated. Shannon objected to this. However, there was evidence that Shannon may have had capacity issues. After raising her objection to the cremations, Shannon appears to have disappeared.
The judge hearing the applications noted that the bodies had remained in a hospital morgue for over 7 months, a delay that was “unconscionable” and “intolerable”, and due for the most part to difficulties in contacting Shannon despite reasonable efforts.
The court granted the applications notwithstanding the lack of consent or a renunciation from Shannon, citing Rules 2.01 and 2.03, which allow a court to dispense with the strict compliance with the Rules of Civil Procedure where it was necessary and in the interest of justice. “It is in no-one’s interests to delay the administration of this estate and, hence, the removal of the bodies and their cremation or burial, because of Shannon Timmerman’s failure or inability to take any steps herself to address the need to attend to these formalities.”
In both estates, the court directed the Estate Trustee to make best efforts to bring the Certificate of Appointment to the attention of Shannon before the bodies were finally laid to rest. However, this requirement was not to unduly delay things further. If Shannon could not be located using best efforts, the Estate Trustee was to proceed with the disposal of the remains as she saw fit.
See here for our blog on The Duty to Dispose of the Body.
Thanks for reading.
Everyone likes gossip. For those who place themselves in the public spotlight their privacy is constantly invaded, even after death. In an article entitled, “Dead People Science Won’t Let R.I.P.”, Joseph Calamia looks at famous people whose buried bodies have been exhumed.
Bodies are exhumed for numerous reasons such as to determine the cause of death, to answer historical questions, or identify the deceased, if he or she was either not identified or misidentified at the time of burial.
I found Mr. Calamia’s article to be a little creepy, but nonetheless interesting. For instance, archaeologists discovered Tutankhamen’s tomb in 1922 and subsequently learned that the 19-year-old pharaoh “wasn’t exactly the model of health.” Egyptian researchers learned from genetic testing “that inbreeding and disease may have left King Tut so crippled that he could barely walk.”
In an article entitled, “Michael Jackson’s Body Might Be Exhumed”, it has been suggested that Dr. Conrad Murray’s legal team may be considering exhuming Michael’s body to suggest that an overdosing of propofol was the least of Michael’s health concerns.
It appears that even after death, there is no expectation of privacy for some. After numerous attempts were made to snatch the body of former U.S. President, Abraham Lincoln, it was decided that Lincoln’s coffin would rest in steel and concrete. Whatever happened to rest in peace?
Have a good weekend,
Rick Bickhram – Click here for more information on Rick Bickhram.
I thought I would start off this week’s blogs by discussing planned giving. Planned giving provides a mechanism for people to contribute to programs that they support. In this way, people are able to target their philanthropic efforts towards programs that they believe will improve communities. The book, The Art of Giving: Where the Soul Meets a Business Plan, captures this idea perfectly and I recommend it as a must read. The authors, Charles Bronfman and Jeffrey Solomon, recognize that giving is meaningful and personal. So, for example, individuals who love animals may decide to donate part of their estates to animal welfare organizations.
So how do you want to improve your community? What about willing your body to a “body farm”? This is 1 of the 10 suggestions made in a CNN Report written by Elizabeth Cohen entitled “Ten uses for your body after you die”.
The body farm, as it is known, is located in Knoxville, Tennessee and has 650 skeletons scattered over 2.5 acres so that anthropology students are able to study bodies in varying stages of decay for the purposes of learning about body identification and time of death analysis.
If your charitable inclination is to donate your body to the University of Tennessee Forensic Anthropology Center (aka the body farm) click here.
If you’re undecided, check out the Art of Giving. It’s a good place to start if you are considering providing for charitable donations in your will.
Thanks for reading!
Kathryn Pilkington – Click here for more information on Kathryn Pilkington.
An article from mental_floss magazine has showcased ten things a body can do after death. My particular favourites are:
- Get Married! In China, ghost marriages —the practice of setting up deceased relatives with suitable spouses, dead or alive— is on the rise. The marriages serve a religious function by making the deceased happier in the afterlife.
- Go Green! Cremation uses up a lot of energy and nonrenewable resources. In Europe, some crematoriums have ‘gone green’. These crematoriums have found a way to replace conventional boilers by harnessing the heat produced in their fires. Beginning in 1997, the Swedish city of Helsingborg has used local crematoriums to supply 10 percent of the heat for its homes.
- Stand Trial! In 897 CE, Pope Stephen VI accused former Pope Formosus (who had died nine months earlier!) of perjury and violation of church canon. Pope Stephen VI proceeded to exhume the dead pope’s body, and put the corpse on trial and subject it to a full cross-examination – the so-called "Cadaver Synod". The following year, Formosus’ conviction was overturned and his body was reburied with full honours.
For the complete list, check out the article at http://www.mentalfloss.com/blogs/archives/24833.
Have a great weekend!
Bianca La Neve
Bianca La Neve – Click here for more information on Bianca La Neve.
Upon the death of a person, a duty arises to bury or otherwise dispose of the remains in a decent and dignified fashion. But who does this duty fall upon?
It is well established in the jurisprudence for Ontario that plans for the service and burial arrangements are the responsibility of the estate trustee. This responsibility can conflict with the wishes and expectations of the deceased and family members, particularly in a religious context.
In Saleh v. Reichert, the deceased was of the Muslim faith. Her husband had converted to the Muslim faith for the purpose of there marriage. There was evidence indicating that the deceased expressed her wish to be cremated upon her death. The deceased’s husband was appointed as the estate trustee without a will and intended to honour the deceased’s wishes. The deceased’s father objected to the cremation on religious grounds.
The court affirmed the fundamental duty of an estate trustee is to ensure that the remains of a body be disposed of in a decent and dignified fashion. The court held that religious law has no bearing on the case. In Ontario, burial and cremation are both means that would meet the requirement for disposal in a decent and dignified fashion. The deceased’s father’s action was dismissed.
It is important to note that it was acknowledged that there is no property in a body. Therefore, any instructions left by the deceased, whether in a Will or otherwise are only precatory and are not binding on the estate trustee.
Listen to becoming an executor after death.
This week on Hull on Estates, Ian Hull and Suzana Popovic-Montag, discuss becoming an executor after death and three issues that must be addressed immediately.