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Tuesday, June 27, 2017

New Brunswick family in court battle over husband's remains

Most people probably think that estate fights are about money, or perhaps about individual heirlooms. Many fights are about those things, certainly. But some estate disputes are about how to deal with the deceased's remains.

It's not a well-known fact that the person who has the final say in the disposal of your remains is not your spouse or your children or your parents; it is the executor named in your will. Your executor gets to decide matters such as whether you're cremated, where you're interred, and whether there will be a service held. If there is a difference between what your family wants and what your executor wants in terms of your remains, the executor wins.

Because people want to ensure that their wishes are known and followed, it is popular to include wishes for the disposal of remains in wills. But did you know that the executor can choose to ignore wishes about disposal of the body even when those wishes are set out clearly in the will?

In my view, it's still a good idea to include those wishes in your will for the simple reason that not many executors will deliberately go against the wishes of the deceased. The vast majority of people who accept the job as executor do so out of family obligation or the loyalty of a friendship, and they want to do what the deceased wanted them to do. Other family members will also usually choose to follow the written wishes of the deceased.

There is a family in New Brunswick who is fighting about how to dispose of the remains of David Charles Andrew Mason. He was cremated, then his mother arranged for his ashes to be buried in their family plot. Now his widow wants his ashes moved to another cemetery. The case is complicated by the fact that Mr. Mason was cremated and buried a year ago, which means that the executor (who is also the wife) did not exercise her rights at the time of the disposition of the remains.

Now they're in court. Both sides are incurring legal fees, and have of course lost all privacy in the matter. Perhaps if Mr. Mason had included his funeral wishes in his will, and if his executor had spoken up at the appropriate time, all of this could have been avoided.

12 comments:

  1. JOHNNIE RAY - BURY ME OUT ON THE LONE PRAIRIE - YouTube
    https://www.youtube.com/watch?v=n8UzJSU3lWI

    ReplyDelete
  2. The Remains of the Day (1993) or from NB The Remains of the Dead (2017)

    ReplyDelete
  3. As a long term avid reader of this blog, I thank you Lynne for providing this great resource and for freely offering your professional expertise in Canadian wills and estate legal matters.

    A few recent comments have lead me to question: Why is irrelevant gibberish now being permitted? I understood all comments are screened before being posted.

    ReplyDelete
    Replies
    1. I note your comment, with thanks. I'll keep it in mind :)

      Lynne

      Delete
  4. @ Lynne
    Re-Anonymous -3:28 PM (9 minutes ago)
    Anonymous does have a point. Let's keep this Blog, Dark and Heavy, devoid of any humour. :)..o0ps remove that smilie.

    ReplyDelete
  5. Relevant humor is something which Lynne does include from time to time, as appropriate.

    Irrelevant fluff posted to a serious topic, only clutters and distracts from the topic and from comments made by commentators with issues that are pertinent.

    If you find this blog so dark and heavy ("keep"), why frequent it? If fluff and humor are what you're looking for, then maybe Facebook and other social sites will satisfy that void.

    Consideration and respect should be shown to the purpose for this blog, and especially to Lynne's dedication, professionalism and time investment. If you were paying her usual hourly fee, would you be joking or discussing matters not relevant to your issue?

    Consideration needs also to be shown to readers who come here, often confused and desperate, searching for factual direction and education on their estate legal concerns.

    ReplyDelete
  6. Anonymous, you are are simply too sharp for me! I have no intention of verbally sparring with you in this Blog. That is not what this Blog is intended for. Lynne, I understand you want and allow fair and balanced responses but this is totally detracting from the purpose of this Blog. This is my last comment re this matter.

    ReplyDelete
    Replies
    1. No need for verbal sparring. Everyone has had their say. I appreciate everyone's input. Now let's all get back to reading and commenting!

      Lynne

      Delete
  7. Can the Executor give cremated remains to non-family memebers (as a beneficiary in the will) against the wishes of family beneficiarries?

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    Replies
    1. Jess, as you would have seen in the original article I published, the executor has the right to dispose of the body as he or she sees fit. That would include the ultimate destination of the cremains. Whether or not the person who gets the cremains is a beneficiary under the will is completely irrelevant, unless of course the will mentions ashes in that context.

      Lynne

      Delete
    2. It seems reasonable there is some discretion in the disposal of the remains, since a will, if one exists, is sometimes not located until well after the funeral has taken place.

      If an Executor is required to uphold the will's disposal provision, then that would likely result in too many bodies being held in cold storage until a will is located and the the named Executor accepts responsibility. I expect remaining family wouldn't be happy that closure would be extended.

      If a burial or cremation takes place, there is typically no reasonable method to change the matter after the fact if a will is later found and specifies an alternate method.

      If enforced as any other will provision, the Executor could potentially be held liable if the will was not specifically followed. I doubt too many would accept being appointed Executor with that potential risk.

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    3. Those are very good points. I usually find that people react to the idea of the executor's discretion with shock and outrage. Your logical response is refreshing.

      Lynne

      Delete

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