When an individual passes away, they often leave specific directions to their loved ones regarding how they would like their remains to be disposed of. But what happens if no such directions are left? Or if the directions cannot be carried out? Are these directions binding? The law provides some guidance for how to resolve disputes relating to a deceased’s remains and whose responsibility it is to heed this guidance.
It is first important to establish to whom the duty to dispose of a deceased’s remains is assigned. The Court has established that the estate trustee has the duty to decide where and in what manner the deceased is to be buried (Catto v McKay, 2016 ONSC 3025; Mouaga v Mouaga, [2003] O.J. No. 2030). If a dispute arises regarding the disposal, the trustee has the sole, unilateral duty to dispose of the deceased’s remains. While a body cannot be owned, the trustee has the right to the custody and possession of remains until they are disposed of (Hunter v. Hunter, 1930 CanLII 357 [Hunter]).
Now that it has been established to whom the duty is assigned, it needs to be established exactly what that duty entails. As long the duty is carried out reasonably, in a manner that is dignified and respectful, the Courts will refrain from interfering in a trustee’s manner of disposal of the remains (Krauch v. Degen Estate, 2021 NSSC 108 [Krauch]). While disposing of the remains in a reasonable manner can entail considering the deceased’s wishes, the estate trustee is not bound by the deceased’s wishes for disposal (Hunter). The estate trustee has the unilateral right to decide upon the manner and location of disposal.
While a body cannot be divided for the purposes of resolving a dispute regarding disposal, the Courts have differentiated between ashes and a body. The Courts have acknowledged that ashes can be divided and spread amongst family members. If a dispute arises regarding the disposal of a deceased’s ashes, this is an option that the Courts may consider [Krauch]. Ashes can be divided, moved, buried, scattered, or many other options allowed by the Funeral, Burial and Cremation Services Act, 2002, S.O. 2002, c. 33.
While often not the primary focus of an estate trustee’s duties, the duty of the trustee to dispose of the deceased’s remains in a reasonable manner can become contentious should a dispute arise. If a dispute does arise, it is important to know who has the ultimate authority to make decisions regarding the deceased’s remains and what the implications may be.
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This WARDS LAWYERS PC publication is for general information only. It is not legal advice, nor is it intended to be. Specific or more information may be necessary before advice could be provided for your particular circumstances.
