Sometimes in estate litigation, estate lawyers or estate litigation lawyers have to deal with the question of what happens to ones remains. Most people would assume that what they have told their family would be observed. But what happens if there is a fight amongst family members.
The general rule is that the executor named in Will has the authority and controls what happens to the deceased’s remains. This is not a statute written law, but rather based upon a long series of Judges’ decisions. Further, the law holds that while the deceased’s wishes should be honoured as far as possible, it is not legally binding on the executors. One’s wish even expressed in a Will such as cremation is not enforceable. In other words, these are simply an expression of a wish or desire which in legal terms are referred to as precatory. See the case of Saleh v. Reicherdt.
If there is no will there is a hierarchy of persons who should be appointed as estate trustees set out in The Estates Act section 29 (1). The judge in the Buswa v. Canzoneri case where the family members could not agree, decided to simply follow that order of priority. However, in a competing decision ZL v. LB, the judge pointed out section 29 (3) of The Estates Act gave the court broad discretionary power if there is no Will and that the court may appoint such person as it thinks fit upon his or her giving such security as it may direct and every such administration may be limited as it thinks fit. In other words, the court can name anybody that it thinks is appropriate to act as an estate trustee and not simply the spouse or a close relative.
In 2023 Nova Scotia case, Curry v. Curry, the court looked at a number of principles and Justice Keith wrote a long decision setting out the guiding principles on selecting an estate trustee.
It is the executor’s obligation to ensure that one’s remains are treated with dignity and disposed of in a respectful manner. The law on “ownership” of a dead body reachs all the way back to the 1882 English case in Williams v. Williams , and the 1952 Supreme Court of Canada decision in Schara Tzedek v. Royal Trusco. The Court has held there is no property in a dead body. As a result, any directions contained in a deceased person’s Will about their burial are not enforceable at law. The executor begins with presumptive right of possession over the deceased remains to ensure proper disposition. While this grants authority and control over the remains, it is not the same as the as ownership of the body.
Hopefully a family will abide by the wishes of the deceased, but that has never been a bar to estate litigation. Will and estate lawyers, have learnt this the hard way.
