The COVID-19 pandemic has changed the way in which we live our lives, with strict limitations on social gatherings of any kind, including funerals. However, deaths obviously continue to occur during this period, with death rates among certain population groups on the rise, and delaying memorials and funerals until after the current health crisis has ended, whenever that may ultimately be, may be impractical and/or prolong the grieving process.
A review of recent news articles suggests that several trends are beginning to emerge in respect of funerals as large in-person gatherings continue to be prohibited throughout Canada and much of the world:
- Some funerals are being held using video-conferencing software such as Zoom, with enhanced ability for family members living abroad to participate, with some funeral services continuing in-person, with very limited attendance (typically limited to five individuals, including the officiant) and distance of no less than six feet between attendees who are not members of the same household;
- Communities such as Flatrock, Newfoundland, have seen cars line up along the side of a street to blink their lights as the hearse passes by on its way to the cemetery as a way to show their respect without potential exposure to the virus;
- In Quebec, because of concerns over transmission, embalming in respect of the remains of a victim of COVID-19 is prohibited, there are restrictions as to the timing for visitations and interment, and funeral-related service providers are relying upon protective equipment (such as N95 masks and gloves) to stay safe while handing remains of COVID-19 victims;
- Funerals in Calgary and elsewhere are reportedly “going digital”, with funeral home directors citing the increased role of online photo gathering and live-streamed funeral services;
- Online visitations are gaining popularity (according to funeral workers in Windsor), while some Jewish families are sitting shiva on Zoom.
It will be interesting to see whether any of these trends survive the lessening of restrictions on social gatherings.
Thank you for reading.
Other blog entries that may be of interest:
With the summer vacation now at the midpoint, many people are travelling as part of their holidays. But, what can one do when a friend or family member dies while you are on vacation? Does your trip have to be cut short? Are there additional charges to be paid for changing dates on plane tickets and for hotel room cancellations? Not any longer. In many cases, a livestream funeral service is now available. Some companies provide this service via the internet. Or, depending upon the funeral home, wireless can be used to stream the memorial service using facetime or skype. There are even websites that provide information and assist with the planning of the do-it-yourself camera work.
There are many advantages for those who cannot attend even if not on vacation. Other reasons to not attend in person might be because of illness, distance, cost or other barriers. Now almost everyone can attend from wherever they are.
Also, the funeral service can be archived and watched again online. This can be of benefit not only to those who could not attend the service in person but also to family members who were there. It can help in dealing with their loss or to simply remember things that were missed in the immediate grief of the service. Technology has developed rapidly. It has become accepted and has recently extended into the areas of wills and estates, providing services such as online obituaries instead of publishing in newspapers; advertising for estate creditors using online services instead of much more expensive newspaper print notices; cataloging and registering the location of wills (in some jurisdictions); assisting lawyers in automated interactive drafting of wills (like the Hull e-State Planner); recognizing the validity of electronic wills (in some jurisdictions); among others. The trend towards even more changes coming in this area is strong and there is hope that expanding technology use will serve to assist friends and family members through difficult times.
Thanks for reading!
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
Recently, an innovative company launched a product that is truly turning heads – or rather, headstones – into living memorials from which the deceased can now create an interactive memorial legacy from beyond the grave.
QR Codes are the two-dimensional bar codes which are becoming ever more omnipresent in today’s advertising. These pixelated square images are often found in the corners of street advertisements, on public transport and even consumer products themselves. These simple barcodes allow anyone with a modern smartphone, or other mobile devise, to scan and be redirected to the advertisers’ or products’ web page. Now, a unique application of QR Codes allows for grave site visitors to scan the headstone of their loved ones and be redirected to a memorial page or archive site of the deceased’s, or their survivor’s, choosing.
With the increasingly common trend of separation of family members due to our progressively mobile population, some are turning to innovative ways to keep connected to their ancestry and heritage. The use of products such as interactive headstones allow loved ones to post obituaries, family history and photos to web pages accessible by a simple swipe over a QR Code imbedded into the headstones of their deceased family members.
When planning for a final resting place, many may find this alternative a desirable, contemporary approach to memorializing their legacy, through a combination of past and modern technologies, in a way that allows those passed to remain connected with their families in death.
As this technology develops and becomes increasingly common, it is quite possible that future generations will gain a digital legacy of their ancestors, accessible online, for many years to come.
Thank you for reading!
It is not often that the sports section and the estates world overlap. While looking through the sports section a couple of days ago however, one story in particular managed the rare crossover. The story focused on the Philadelphia Phillies AAA affiliate, the Lehigh Valley IronPigs, and the unorthodox contest which they had announced. The prize? Your dream funeral paid for.
As you can expect, the contest got a lot of attention in the press. As jokingly put by the IronPigs General Manager, “it’s one of our best out-of-the-box promotions. Or maybe I should say one of our best ‘in-the-box’ promotions”.
In order to enter the contest, fans had to submit an essay describing their ideal funeral and why they deserved to win. In total approximately 50 people submitted entries, some serious, some not-so-serious (one entrant provided that their dream funeral would have a bouncer who would eject any patrons who were not sufficiently mournful).
The IronPigs subsequently announced the winner of the contest to be a 64 year old lifelong baseball fan who was recently diagnosed with ALS. When asked about his diagnosis of ALS, the winner jokingly stated “I’m not a Yankee fan, but I told them to put a no. 4 on me” (the number famously worn by fellow ALS patient, Lou Gehrig).
When asked why he entered the contest, the winner stated that the prize made it so that there was one less thing that his family had to worry about as the disease progressed. He importantly added however, “I plan not to use this for a while.”
Maybe the IronPigs were on to something after all.
Have a great weekend.
While funerals are generally conservative and solemn affairs, the coffin makers at England’s Crazy Coffins have been trying to prove for the last 25 years that this does not always have to be the case.
Crazy Coffins is just one of several companies which specialize in making coffins in just about any shape or design you can think of. Do you consider yourself to be a spicy little number? How about being interred in a six foot long Habanero pepper? Can’t imagine life without your cell phone? No worries, they can arrange for you to be buried in a six foot long replica. Other options include fish, a Rolls Royce, a Viking boat, and a skateboard, just to name a few.
The idea of making your mark after you are gone is hardly new. Indeed, the word Mausoleum, comes from the tomb of King Mausoleous of the ancient city of Halicarnassus, whose tomb was so grand, that it was and still is considered one of the seven wonders of the ancient world. But I digress…
The modern fascination with exotic coffins is best seen in Ghana, from where the enterprising Crazy Coffin creators draw their craftsmen. According to a recent article in the UK’s Daily Mail, many Ghanaians believe in an afterlife and regard deceased ancestors as more powerful than the living, which beliefs have driven some to make exotic resting places for their loved ones. The shapes of Ghanaian caskets often reflect the deceased’s profession or links to certain clans.
With an exotic coffin, the opportunities for those who enjoy the thought of planning for the end of life with a little irony seem truly endless. Instead of having a final nail in your coffin, your coffin could instead be a nail.
Of course the final irony is this: As discussed in my blog earlier this week (“Who decides what happens at your funeral?”), in Ontario, the executors of your Estate do not have to follow your wishes with respect to the manner of your burial. So if you are committed to the idea of a six foot long replica of The Edmund Fitzgerald as your final resting place, it may be a good idea to let your executors in on the joke ahead of time.
Thanks for reading. Enjoy the weekend,
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.