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!
I recently came across an article on the subject of statues in London, England, in light of the recent unveiling of a statue of Mary Seacole, a Jamaican nurse and traveller who moved to England after playing an important role in the Crimean War. The article raised the issue of other famous figures of London and the rest of the world who have not yet received the same honour.
Surprisingly, there is no statue of Charles Dickens in London. The Londonist article notes that, in his Last Will and Testament, Charles Dickens requested that he not be made the subject of a statue or other monument. On this subject, Dickens’ Will, dated May 12, 1969, reads as follows:
“I emphatically direct that I be buried in an inexpensive, unostentatious, and strictly private manner; that no public announcement be made of the time or place of my burial; that at the utmost not more than three plain mourning coaches be employed; and that those who attend my funeral wear no scarf, cloak, black bow, long hat-band, or other such revolting absurdity. I direct that my name be inscribed in plain English letters on my tomb, without the addition of ‘Mr.’ or ‘Esquire.’ I conjure my friends on no account to make me the subject of any monument, memorial, or testimonial whatever. I rest my claims to the remembrance of my country upon my published works, and to the remembrance of my friends upon their experience of me in addition thereto.”
It appears that at the relevant time, such language contained within a Last Will and Testament was, and it remains in Canada today, largely precatory. Though none in London, several statues of Charles Dickens have been erected worldwide. His former home is now the site of a Dickens museum and numerous plaques and a mural featuring the writer appear throughout London and his birth-town of Portsmouth. The typically-unenforceable nature of precatory terms within a Will highlight the importance of choosing a trusted estate trustee who will honour the wishes expressed during one’s lifetime and those recorded within the document. Further, the strong presence of monuments featuring Charles Dickens may serve as a reminder that public figures may not be able to escape continued attention long after death, whether they wanted it in the first place or not.
Some of the author’s other suggestions for other individuals worthy of memorialization in London include chemist Rosalind Franklin, boxer Muhammad Ali, and James Bond.
Have a great weekend.
Prince Edward Island is the home of the International Children’s Memorial Place (“ICMP”).
The mission of the ICMP is to promote and foster the health and well-being of individuals and families who grieve for the physical and emotional loss of a child.
ICMP operates a beautiful 12 acre park dedicated to the memory of lost children. It features a walking trail with reflection points, a path of remembrance, paved with engraved bricks, a labyrinth, and a memorial forest. The stunning natural setting is a sanctuary for the mind and soul, and allows the visitor to take advantage of the healing power of nature.
The ICMP was founded in 1999 by my cousins, Bill and Myra MacLean, following the death of their son, Trevor MacLean. (Every summer during my childhood, I would spend a few weeks in PEI, my mother’s birthplace, hanging out and getting into mischief and muddy in the red soil with Trevor. It was the best of times.)
The organization is a non-profit organization, and depends on donations. See the Donations page for more information.
Have a great weekend.
Listen to Funeral Considerations
This week on Hull on Estate and Succession Planning, Ian and Suzana discuss the considerations and responsibilities of estate trustees at the time of a funeral.