Estate Planning

Assuming the Obligation to Dispose of Remains

By Hull & Hull LLP

In October 2008, I spoke at the Hull and Hull Breakfast Seminar on the topic of obligations with respect to disposing of the deceased's remains, as well as other issues that arise immediately upon death. (See my paper, here.)

In Lajhner v. Banoub, [2009] O.J. No. 1327, this issue was addressed once again. There, the deceased died on March 18, 2009 at the age of 24. He died without a Will. His parents on the one part, and his alleged spouse, on the other, sought to be appointed as Estate Trustees, primarily for the purpose of assuming the obligation of determining the disposition of the deceased's remains.

Both sets of parties, the court found, were motivated by a desire to do what they believe the deceased would want.

The parents wanted to cremate the deceased's remains. The alleged spouse opposed this, stating that the deceased was Muslim, and that the Muslim faith did not accept cremation.

The issue became who was most likely to be appointed as estate trustee under s. 29 of the Estates Act.

The court went on to find that the deceased was not in a conjugal relationship with the deceased immediately before his death. The evidence was that they were not residing together, and that there was no intention of reconciliation. Thus, the court concluded that the parents would most likely be appointed as Estate Trustees, as the spouse did not qualify under s. 29 of the Estates Act. They were therefore entrusted with the obligation to dispose of the deceased's remains.

The court once again confirmed prior case law to the effect that religious laws or beliefs are not a factor that the court may take into consideration. What the court must do is determine who is most properly appointed as Estate Trustee. As the alleged spouse did not qualify under s. 29 of the Estates Act, she could not be appointed as Estate Trustee.

Thanks for reading.

Paul Trudelle

Full post as published by Toronto Estate Law Blog on September 16, 2009 (boomark / email).