Estate Planning

The Duty to Dispose of the Body

By Hull & Hull LLP

Upon the death of a person, a duty arises to bury or otherwise dispose of the remains in a decent and dignified fashion.  But who does this duty fall upon?  

It is well established in the jurisprudence for Ontario that plans for the service and burial arrangements are the responsibility of the estate trustee.  This responsibility can conflict with the wishes and expectations of the deceased and family members, particularly in a religious context.

In Saleh v. Reichert, the deceased was of the Muslim faith.  Her husband had converted to the Muslim faith for the purpose of there marriage.  There was evidence indicating that the deceased expressed her wish to be cremated upon her death.  The deceased's husband was appointed as the estate trustee without a will and intended to honour the deceased's wishes.  The deceased's father objected to the cremation on religious grounds.

The court affirmed the fundamental duty of an estate trustee is to ensure that the remains of a body be disposed of in a decent and dignified fashion.  The court held that religious law has no bearing on the case.   In Ontario, burial and cremation are both means that would meet the requirement for disposal in a decent and dignified fashion.  The deceased's father's action was dismissed.  

It is important to note that it was acknowledged that there is no property in a body.  Therefore, any instructions left by the deceased, whether in a Will or otherwise are only precatory and are not binding on the estate trustee.

Rick Bickhram

Full post as published by Toronto Estate Law Blog on October 22, 2008 (boomark / email).