Tag: funeral planning
When a person dies, loved ones generally attend to the burial and memorial preparations without any thought as to who this responsibility falls upon and who has ultimate decision-making power. Where a dispute arises as to the how to say one’s final goodbyes, however, the courts are ready to provide an answer.
Courts have long held that the right to determine how a body is disposed of falls upon the estate trustee of the deceased’s estate. This right arises because the estate trustee is under a duty to ensure the deceased’s body is disposed of in a manner suitable to the estate left behind by the deceased. With this duty comes the corresponding right to possess the body for the purposes of burial. This right comes in priority of the right of spouses, children and other loved ones to decide how to dispose of the body.
For anyone who is in the process of preparing their wills, they hopefully give some thought and consideration as to the suitability of their chosen estate trustee. Ideally, they’ll ensure that their estate trustee is someone:
- likely to outlive the testator;
- willing to take on the task of administering an estate; and
- who will diligently bring all assets into the estate and attend to their distribution.
Testators may want to give some consideration for how the estate trustee will dispose of their body after death as well. This is particularly so as the disposition of one’s body is not something that one can validly provide for in a will (Williams v Williams (1882) 20 Ch D 659 (Eng Ch Div)). Hence, once deceased, testators are in the hands of the estate trustee, so to speak. Where a testator has any concerns that loved ones might fight over burial plans, then some further thought should be given to choosing an estate trustee who will act in accordance with the wishes of the testator.
Unfortunately, disputes over the burial of remains do come up. We’ve blogged on a few of these cases in the past, including the case of legendary soul singer, James Brown and the case of Leo Johnston, a slain RCPM officer in Alberta.
For anyone concerned about it, they may take some small amount of comfort in knowing that once in the ground, courts will be extremely cautious in disturbing a deceased’s (hopefully) final resting place (see, for example, Mason v Mason, 2017 NBQB 132).
Thanks for reading!
Catto v. Catto illustrates some of the myriad of issues that can surround the administration of an estate.
There, the deceased died at the age of 50 without a will. He was survived by his wife of one year, and his mother and a brother.
The mother applied to the court to be appointed as Estate Trustee. The mother also sought an Order that the deceased’s ashes be exhumed, so that one half of the ashes could be buried in a family plot in Quebec, and an order that she be reimbursed for funeral expenses.
The brother sought an order for the inspection of a hockey card collection, so that he could determine which of the hockey cards in the deceased’s possession belonged to him.
The deceased’s spouse is alleged to have initially agreed to burial of the deceased’s ashes in the family plot. However, she subsequently obtained the ashes, and buried them in Peterborough.
In deciding what to do with the ashes, the court considered the question of who should be appointed as estate trustee. The estate trustee would be entitled to decide on the location and manner of burial of the ashes.
With respect to the appointment of estate trustee, the court considered the relevant statutes. The court noted that the surviving spouse was entitled to all of the property of the deceased’s estate on intestacy, and did not have any interest that was adverse to the estate, such as a claim for dependant support or other relief against the estate. Buttressing this, the court noted that the deceased’s mother was a resident of Quebec, and that s. 5 of the Estates Act prohibits granting letters of administration to a person not residing in Ontario.
As the deceased’s spouse was appointed Estate Trustee, she alone could determine the disposition of the ashes. The mother’s claim for half of the ashes was dismissed.
The deceased’s mother was entitled to be reimbursed for funeral expenses by the estate. The court rejected the argument that the mother had made a gift to the estate of the funeral expenses. To find a valid gift, the court requires i. an intention to make a gift; ii. acceptance of the gift; and iii. a sufficient act of delivery. Here, the first and second points were not present. There was no intention on the part of the mother to make a gift, and prior to appointment by the court, there was no administrator of the estate able to accept the gift.
The court reviewed evidence that the deceased and his brother collected hockey cards together for many years. The cards were originally in possession of the brother, but were then moved to the deceased’s residence as the brother was expecting twins and did not have space to store the cards. There was allegedly a list kept by the deceased as to which cards belonged to whom. However, this list could not be found.
The court ordered that the cards be inspected by the surviving brother. If the list could not be found, then the cards were to be divided between the surviving brother and the deceased’s estate “in a randomized manner”.
In a separate decision, the court addressed the costs of the parties. The surviving spouse claimed costs of $10,133 plus disbursements and HST. In light of the divided success, and an offer to settle made by the spouse, the mother and brother of the deceased were ordered to pay costs to the surviving spouse of $5,000 plus disbursements and HST.
- Make a will (it is, after all, Make A Will Month);
- if you are holding property for someone else, or if someone else is holding property for you, have clear, shared records.
Have a great weekend.
Celebrities and Explosions.
Now that I have your attention, yes today’s estate blog is actually about celebrities and explosions.
Johnny Depp, the famed actor.
Now I really have your attention.
I recently came across this article in The Guardian, which highlighted the efforts made by Depp to plan Hunter S. Thompson’s funeral after his passing in February 2005.
Thompson, well known for authoring Fear and Loathing in Las Vegas had made requests prior to his passing to Depp, a close friend, as to how he wanted his ashes to be scattered. Depp stuck to his word and took steps to ensure that Thompson’s last wishes came true and made sure that “his pal was sent out the way he wanted to go out”.
As such, Thompson’s ashes were fired from a cannon that was placed atop a 153-foot tower shaped like a double-thumbed fist, clutching a peyote button, on Thompson’s Colorado farm. Yes, apparently Thompson loved explosions.
The total cost of the funeral was $3 million, which apparently, was funded entirely by Depp.
The surviving spouse, Anita, Thompson, supported Depp’s decision and even went on to state that the grounds where the cannon stood, remains a meditation labyrinth that is used every day at Thompson’s Colorado farm.
In Ontario, an 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 the family of the deceased). Where a Will includes burial instructions, such instructions are precatory and not binding on the estate trustee.
Find this topic interesting? Please consider these related Hull & Hull LLP Blogs:
- Who Has the Authority to Make Funeral and Burial Arrangements on an Intestacy?
- Ashes to Ashes in Bali: David Bowie’s Last Will and Testament
- Cryogenics and Funeral Arrangements
I recently came across an interesting English decision which addresses the Court’s involvement in funeral arrangements.
In the case of Re JS (Disposal of Body), the High Court of Justice (in England and Wales) was forced to consider a dispute between the divorced parents of a 14 year old daughter, JS, who sought to have her body cryogenically frozen at death.
Unfortunately, JS was diagnosed with a rare form of cancer, and there was little hope of her recovering. As a result of researching cryogenics and cryopreservation on-line, JS said that “I’m only 14 years old and I don’t want to die, but I know that I am going to. I think being cryo-preserved gives me a chance to be cured and woken-up, even in hundreds of years’ time. I don’t want to be buried underground“.
JS’ mother supported her daughter’s wish, whereas the father’s position fluctuated throughout.
The Judge held that the mother is best placed to manage the request for cryopreservation. One of the reasons for this cited by the Judge is that JS’ father had not seen JS for the prior eight years.
Accordingly, the Judge made a specific order “permitting the mother to continue to make arrangements for cryopreservation and an injunction preventing the father from interfering with arrangements made with respect to the disposal of the body“.
Subsequently, JS passed away and her body was taken to the Cryonics Institute, in the USA.
This is an interesting decision not only because JS’ wishes were followed even though she was a minor, but also and because the Court indirectly provided guidance as to the appropriateness of funeral arrangements while the affected person was still alive.
For other interesting Hull & Hull blogs on Cryogenics & funeral arrangements, please see:
- Who Has the Authority to Make Funeral and Burial Arrangements on an Intestacy?
- Pre-Paying for Your Funeral
- The Legend of Ted Williams