Tag: precatory wishes
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
Obituaries come in various shapes and sizes. There is no law setting out what an obituary must include, nor where it must be published.
A cursory review of our prior blogs on this topic indicate that humour appears to be a recurring theme.
The obituary for Mary Anne Noland, is no exception. The writer clearly had politics in mind when writing Mary’s obituary, which states:
NOLAND, Mary Anne Alfriend. Faced with the prospect of voting for either Donald Trump or Hillary Clinton, Mary Anne Noland of Richmond chose, instead, to pass into the eternal love of God on Sunday, May 15, 2016, at the age of 68. Born in Danville, Va., Mary Anne was a graduate of Douglas Freeman High School (1966) and the University of Virginia School of Nursing (1970). A faithful child of God, Mary Anne devoted her life to sharing the love she received from Christ with all whose lives she touched as a wife, mother, grandmother, daughter, sister, friend and nurse. Mary Anne was predeceased by her father, Kyle T. Alfriend Jr. and Esther G. Alfriend of Richmond. She is survived by her husband, Jim; sister, Esther; and brothers, Terry (Bonnie) and Mac (Carole). She was a mother to three sons, Jake (Stormy), Josh (Amy) and David (Katie); and she was “Grammy” to 10 beloved grandchildren. A visitation will be held from 5:30 to 7:30 p.m. on Tuesday, May 17, at Trinity United Methodist Church, 903 Forest Ave., in Henrico. A memorial service will be held on Wednesday, May 18, 1 p.m., with a reception to follow, also at Trinity UMC. In lieu of flowers, memorial contributions can be made to CARITAS, P.O. Box 25790, Richmond, Va. 23260 (www.caritasva.org).