Tag: remains

25 Aug

One Final Trip Around the Globe

Suzana Popovic-Montag General Interest Tags: , , , 0 Comments

When someone dies and their wish is to be buried or cremated in another country, grieving family members are left with the daunting task of figuring out how to transport the remains of their loved ones. This can be even more stressful when the death is unexpected.

While most major airlines facilitate the transportation of human bodies or ashes by air cargo, it is not as simple as it sounds. The whole process can be complicated and expensive, so seeking assistance from a professional repatriation company is advisable.

Professional repatriation companies have the expertise to ensure that the entire experience is smooth and easy, as they lead you through the process. They can help obtain and translate death certificates, liaise with government departments and embassies, and coordinate with airlines. These companies usually have pre-existing relationships with airlines as “known shippers” and therefore can make the necessary arrangements to securely transport the deceased with dignity. They can also deal with all compliance issues that may arise, and preparing the paperwork required by both the country of departure and the country of arrival.

The costs of transporting the body of a deceased varies depending on the airline carrier, travel distance, and weight among other factors. While domestic transportation can start at $3000, international transportation of a body can range from $10,000 to $20,000 on average. Transporting cremated ashes has lower compliance requirements and can be a less expensive option to consider.

Most major airlines also offer discounted fares for family members travelling as a result of a bereavement. While each airline has its own eligibility, Air Canada has a broad definition of immediate family which includes:

  • spouse
  • child and grandchild
  • parent and grandparent
  • sibling
  • legal guardian or spouse of legal guardian

The categories include step, half, in-law, and common-law relatives that would fall under each of these classifications. Same-sex partners and in-laws of such are also included.

For more information, it would be best to contact airlines directly or get in touch with a professional repatriation company so they can further guide you in this process.

Thanks for reading, and have a great day,

Suzana Popovic-Montag & Ekroop Sekhon

30 Apr

Cremain in Light: Dealing with Cremated Remains

Paul Emile Trudelle Litigation Tags: , , 0 Comments

“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.

Paul Trudelle

12 Jun

Dealing with the Body: An Often Difficult Task Made More Difficult

Paul Emile Trudelle Estate Planning Tags: , , , , , , 0 Comments

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.

Paul Trudelle

27 Apr

Moving the Body

Paul Emile Trudelle Elder Law, Estate & Trust, Funerals, General Interest Tags: , , , , 0 Comments

Although rare, disputes over the final resting place of a deceased are not unheard of. Such a dispute was the subject matter of Mason v. Mason, a decision of the Court of Appeal of New Brunswick.

There, the deceased died at the age of 53. He was survived by his mother, and his wife of 13 months. At first, the relationship between the mother and the wife appeared to be harmonious. The mother wanted the son’s cremated remains buried next to his father, and the deceased’s wife agreed. Later, however, the wife had a change of heart, as she came to believe that her husband did not have a good relationship with his father. She asked the cemetery to agree to disinter the remains and have them buried in another cemetery. As the original plot was owned by the mother, the cemetery required the consent of the mother. The mother refused to consent.

The wife then applied for and obtained letters of administration. This would normally cloak her with the authority to dispose of the body. The wife then applied to court to exercise this right. The court refused to assist her.

The applications judge held that the administrator had the right to determine the proper burial or disposal of the remains. However, this right was limited to carrying out those actions. The applications judge concluded that the remains were properly dealt with, with the agreement of the mother and the wife. At the time, there was no administrator, and therefore the next of kin could determine the disposition of the body, which they did.

The wife argued that as administrator, she had an ongoing right to determine the burial place. Support for this proposition was found in the Saskatchewan case of Waldman v. Melville. There, the deceased’s sister wished to disinter the deceased, over the objection of the executor. The court held that “The rights of the executor continue after the burial of the body, otherwise it would be an empty right … and those who oppose the executor could disinter the body as soon as it was buried.”

The applications judge distinguished the Melville decision. The rights of an administrator appointed months after burial did not entitle the administrator to disrupt burial arrangements agreed to by the person in her capacity as spouse.

The Court of Appeal upheld the applications judge’s decision. They went on to hold that once the body was properly discharged, it could not be moved, under s. 15 of the Cemetery Corporations Act, without the written consent of the Medical Health Officer or the order of a judge. The Court of Appeal stated that the powers conferred on the court by s. 15 of the Cemetery Companies Act were discretionary in nature. A judge to whom an application is made under that section is required to consider and weigh all the circumstances and make the order he or she considers appropriate. In this case, the court found no valid reason for moving the body.

Thank you for reading.

Paul Trudelle

16 Jan

Who Decides How to Dispose of Human Remains?

Sayuri Kagami Estate Planning, Executors and Trustees, Funerals, Uncategorized Tags: , , , , , 0 Comments

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!

Sayuri Kagami

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