Tag: burial instructions
Shortly after a death, the Estate Trustee is called upon to make important decisions about the funeral and burial arrangements for the deceased.
In many instances, the deceased’s Last Will and Testament may provide instructions to the Estate Trustee regarding the funeral or the burial. However, such wishes regarding burial and funeral arrangements are precatory and not binding on the Estate Trustee. Generally speaking, while it is advisable for an Estate Trustee to consider the wishes of the deceased and his or her next-of-kin when making decisions about the funeral and the burial, the Estate Trustee’s authority to make such decisions is only constrained by a legal duty to dispose of the remains in a dignified manner.
While the authority to make these decisions is fairly straightforward where a deceased person leaves a Will naming an Estate Trustee, conflicts between family members can arise when the deceased dies intestate. This was recently illustrated by the Honourable Justice Smith’s decision in Catto v Catto, 2016 ONSC 3025.
In Catto, the Deceased died after less than a year of marriage to his spouse, Donna. Donna made arrangements for the Deceased’s funeral and burial in his hometown of LaColle, Quebec. However, before the Deceased’s ashes could be buried in his family’s plot in Quebec, Donna advised the funeral director that she wished to transport the ashes back to Peterborough. The funeral director advised Donna that the Deceased’s place of burial was ultimately her decision, and Donna decided to have the ashes interred in Peterborough without notice to any of the Deceased’s family members.
The Deceased’s mother subsequently brought an Application, alleging that the Deceased had wished to be buried in the family plot in Quebec and that Donna had agreed to the Deceased’s burial in the family plot. The Deceased’s mother sought Orders that the Deceased’s ashes be exhumed and that half of the ashes be returned to the family plot. As the Deceased had died without a Will, she also sought an Order appointing her as the Deceased’s Estate Trustee.
Where a person dies intestate, section 29 of the Estates Act gives the Court the discretion to appoint the spouse or common law partner, the next-of-kin, or both the spouse and the next-of-kin as the Estate Trustee. Justice Smith confirmed that section 29 does not confer a priority to the spouse to be appointed as Estate Trustee.
However, in the circumstances, given that the Deceased’s mother lived outside Ontario, that Donna was the sole beneficiary of the Deceased’s Estate, and that there was no potential conflict of interest with her appointment as Estate Trustee, Justice Smith concluded that the administration of the Deceased’s Estate should be committed to his spouse.
Thus, Justice Smith held that “[t]he decision on where the deceased is to be buried and the manner of burial is a right that is granted to the administrator of the Estate which in this case, is his wife Donna.” The relief sought by the Deceased’s mother with respect to the exhumation and reburial of the Deceased’s ashes was denied.
The Catto decision highlights the conflicts that can emerge on an intestacy, and serves as a reminder of the importance of making a Will: although the testator may not be able to dictate the terms of his or her funeral and burial, he or she may be able to minimize the conflict and acrimony over who has the authority to make these decisions by simply naming an Estate Trustee.
Thank you for reading,
Umair Abdul Qadir
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.