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.
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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).
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