Right to Choose Your Final Resting Place
A recent Toronto Life magazine article, “The New Death Etiquette” examines mourning in the 21st century. The new death etiquette includes multicultural hybrid funerals and intricate grieving rituals. Many funerals now are elaborate functions designed to reflect the individual personality of the deceased person. As stated in the article, there is no such thing as a standard burial these days.
Most of us probably do not like to think about our funeral and final resting place. However, when it comes time to preparing a Will, many individuals will ask their lawyer to include burial instructions, such as a wish for cremation or to be buried in a particular cemetery. It may come as a surprise to learn that in Ontario, such instructions are not binding on the estate trustee. It is the estate trustee who has the right and obligation to bury a deceased person, even in the face of objections from family members. The authority for this comes from an English case decided over 100 years ago, Williams v. Williams (1882), 20 Ch. D. 659, where it was held that there is no property in a dead body, and so a person cannot by will dispose of their own dead body. An estate trustee, however, has the right to custody and possession of a deceased’s body until it is properly buried.
Have a great day!
Bianca La Neve
