“Whatever one’s beliefs might be surrounding death, it is likely safe to say that very few people would want their surviving children to be arguing in court about the placement of their ashes almost 5 years after their death. But there are strange things done in the name of ‘respect’.”
This opening paragraph from the decision of Krauch v. Degen Estate, 2021 NSSC 108 (CanLII) serves as the introduction to a consideration of an estate trustee’s rights and obligations with respect to the disposal of ashes, or cremated remains (or, as I only recently heard, and am still not comfortable with, “cremains”).
In Degen Estate, mother died in May 2011. She did not have a Will. Her remains were cremated and were placed in a niche purchased by mother and father. Father then died, leaving a will that appointed one of his six surviving children as estate trustee.
Issues arose with respect to the remains of mother and father following father’s death. In particular, mother’s remains, which were in the family niche, were moved to a “cremation bench” purchased by father. The cremation bench was 25 feet from the niche. Father’s remains remained in the niche. One child strongly objected to the separation of mother and father’s remains.
The objection took the form of an objection to the accounting prepared by the estate trustee of father’s estate. The court held that this was improper. “Disputes about how a person’s ashes are to be kept are not disputes that involve the passing of the accounts of the estate. [The objecting child’s] concerns about the internment of her parents’ ashes are not grounds for the court to refuse to pass the accounts.”
The court went on to consider the legal status of ashes. The court noted the difference between a body and ashes. With a body, once it is interred, there is a sense of finality. Bodies are generally not subject to being disinterred or moved elsewhere. Cremation, however, is different. “A person’s ashes may be divided among family members, placed in urns, moved from place to place, kept on a mantle, buried, scattered or used to create a ‘diamond’.”
The court referred to case law establishing the point that remains are not property of the estate. The estate trustee has possession of the remains and the obligation to dispose of the remains in a manner that is dignified and respectful. In doing so, the estate trustee has significant discretion.
“But the executor’s obligations are fulfilled when arrangements have been made for the appropriate disposition of the ashes. That may involve simply scattering them, having them buried or otherwise interred, or provided to family members, all at the discretion of the executor. An executor is not bound by a testator’s wishes to have ashes scattered in a particular place or places or retained or interred in a particular way. An executor should not be responsible for what family members or others do with the ashes that have been entrusted to them. And estates should not be required to respond to claims by family members for a share of the ashes or for a say in the final disposition of the ashes. That kind of litigation would be unseemly, wasteful and the very opposite of dignified.
As a final observation, the court noted that in any event, mother’s ashes were not part of father’s estate. In moving mother’s ashes, the son was not acting as estate trustee of father’s estate. The court stated that there was no legal impediment to the moving of the ashes by the funeral director from the niche to the cremation bench. However, the court does not say what authority the funeral director would have.
Read Ian Hull’s blog on the question of whether human remains are property of an estate, here.
Have a great weekend.
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.
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,
Over the past few decades, scientists have been sounding the alarm over climate change and the dangers posed to the environment as a result of a variety of human activity. This has led, over time, to the adoption of various practices meant to increase our sustainability and minimize our impact on the environment. Most people probably only consider their day-to-day lives when looking at how they might be more environmentally friendly. However, we might also want to think about the impact our death might have on the environment.
I recently came across this informative video from Vox which discusses the environmental costs of a traditional burial, along with alternatives such as cremation and other more uncommon forms of disposing of human remains:
Some of the negative impacts of burial?
- The use of cement, wood, and metal expended to construct burial plots and coffins;
- The use of space (approximately 32 square feet per person) which must be reserved for a burial plot (and which consequently can’t be used for any other reason); and
- The release of formalin, a toxic carcinogen, along with other untreated waste.
In addition to the environmental costs of burial, the video notes the actual monetary costs of burial, which greatly exceed the costs of cremation.
The video notes that cremation still comes with some costs to the environment, including the release of pollutants (including mercury) and the use of some resources such as natural gas and electricity (from heating the body). Overall, however, cremation appears to be a more environmentally friendly approach to disposing of remains. As a bonus, the video points out some interesting activities that can be done with ashes, such as placing them in fireworks (giving a whole new meaning to the expression ‘going out with a bang’).
For the most environmentally-conscious out there, the video also presents the options of natural burial where non-embalmed bodies are buried in either biodegradable containers or without any form of casket. The body is allowed to decompose naturally such that pollution and resource usage is minimized. More theoretical methods such as breaking down a body frozen in liquid nitrogen or dissolving human tissue in a mix of heated water and lye are also presented.
For anyone curious about the environmental impact of their death, the video is an informative six minute session.
Thanks for reading!
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,
An estate trustee has the legal authority to arrange the place and manner of the burial or cremation of the deceased. The estate trustee also has a duty to see that the deceased is buried in a suitable manner and that no undue expense is incurred. Where a person dies without a will, and an administrator has not yet been appointed by the court, the deceased’s next of kin may direct the manner of burial or cremation. In some cases, the deceased may have made arrangements for a funeral and pre-paid for their own burial or cremation. There are certain statutory and common law consumer protections in regard to the procurement of funeral services.
Burial and cremation services are governed by the Funeral, Burial and Cremation Services Act, 2002. Pursuant to s.42(1), a purchaser of internment rights, defined in s. 1 as “the right to require or direct the interment of human remains in a lot”, may cancel the contract at any time within 30 days after the contract was made. The operator must fully refund all money received upon notice of cancellation. A cemetery operator will be unable to enforce a contract unless it meets the formal requirements set out in the regulations.
Contract law also provides certain protections to those purchasing funeral or burial services. In the recent case of Tsekhman v Spero, the Court held that contracts for funeral and interment services are contracts for “peace of mind”. A breach of contract, therefore, can result in damages for mental suffering. In this case, the Court found that a delay in fulfilling the contract for burial prejudiced the Plaintiffs’ ability to abide by their Jewish laws and customs and to honour their parents’ wishes. The court held damages for loss of peace of mind in a contract case such as this one should be modest.
Thank you for reading … enjoy the rest of your day!
Other articles you might enjoy:
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.
In estate litigation, it is not uncommon to deal with issues regarding human remains. People may be fighting over remains, a person’s remains may need to be transported, and so on.
In the Canadian film “Highway 61”, a Canadian barber/would be jazz musician finds a frozen corpse in his backyard, and agrees to accompany a roadie who claims the dead man as her brother to the United States. Meanwhile, the roadie actually intends to use the body to smuggle drugs to the United States. Clearly, this would constitute an extreme violation of any number of statutes.
But how about transporting remains via post or courier? Does one commit a faux pas by transmitting remains this way? While Canada Post will ship cremated remains, Canada Post’s Priority Worldwide service refuses to ship “human corpses, human organs or body parts, cremated or disinterred human remains”. Purolator refuses to ship remains to domestic or U.S. destinations. Internationally, the easiest way to transport remains is to hire a service which will fly the remains out of the country, or you can fly with them yourself. In conclusion, shipping remains by mail is safe to do within Canada (although not by Purolator); just do not cross the border unless you’re willing to have someone take a plane trip with the remains of the deceased.
Sarah Halsted – Click Here For More Information About Sarah Halsted
I recently came across an article which suggests that Do-It-Yourself (D-I-Y) funerals are an emerging trend in the United States. The article charts the growth of the home funeral movement in the last two decades.
A D-I-Y home funeral can mean many things. A family member may want to build the casket, hold a visitation at home, and they may even want to prepare the body for viewing. The D-I-Y movement provides information on the different state laws and guides family members in the completion of the related forms.
Fuelled by economic concerns, an increased desire to personalized funerals, and the ecology movement which discourages the use of embalming chemicals, some families are investigating this option.
Comparing the D-I-Y home funeral movement to the home birth movement, some advocates suggest that professional services disassociate family members from the grieving process and a return to a home funeral results in a more meaningful experience.
Not sold on the merits of preparing your loved one’s body for viewing and burial? Max Alexander has written a touching piece on his experience with a home funeral and a regular funeral. Alexander’s father and father–in-law died in the same month. While his father had a traditional funeral, his father-in-law had a home funeral. Despite all the paperwork involved, Alexander favours the home funeral approach.
In Ontario, funerals are heavily regulated but it is not illegal to prepare a family member for burial and cremation without the assistance of a funeral home as long as you are in compliance with all relevant regulations. However, in order to comply with all regulations and obtain the proper paperwork, funeral directors are an invaluable source. Further, funeral homes are adapting to the requests of families by accepting homemade caskets and preparing bodies for viewings held at a private home.
And remember that the D-I-Y funeral movement does not include D-I-Y burials and cremations; some things have to be left to the professionals.
Enjoy your (long) weekend!
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.