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Who decides what happens at your funeral?

Estates and trusts litigator Saman Jaffery

By Saman Jaffery

As you may know, a feud recently erupted in Nelson Mandela’s family respecting where the former South African president will eventually be buried. While Mandela remains in critical condition in hospital, his family’s very public battle played out in the courts and the national and international media last week. While Mandela’s family dispute has been mired in scandal, such family disputes concerning funeral and burial wishes are not uncommon.

In Ontario, where a person dies leaving a will naming an estate trustee, the estate trustee has the paramount legal authority to determine the place and manner of burial. There is no legal requirement for the estate trustee to follow the wishes expressed by the deceased, or those of the family of the deceased. While wills typically include burial instructions (such as a wish for cremation or to be buried in a particular cemetery), such instructions are precatory and not binding on the estate trustee. The estate trustee has the power to decide the place and manner of the burial, even in the face of objections from family members. Nonetheless, court proceedings may be commenced by family members who have different views and priorities, particularly where religious beliefs become an issue, than the estate trustee. These family members may be shocked to find that their deeply held beliefs will most likely be trumped by estate trustee’s power to decide, provided that the estate trustee ensures that deceased’s remains are disposed of in a decent and dignified fashion.

Where a person dies without will and an estate trustee has not yet been appointed by the court, the deceased’s next of kin can direct the manner of burial. However, when there is a dispute amongst the family members respecting the manner of burial and a compromise cannot be reached, court proceedings may also be commenced. Typically in such cases, there will be competing claims between family members seeking to be appointed as the estate trustee, so that they may be empowered to direct the manner of the burial.

This was the situation in the Ontario case of Buswa v. Canzoneri 2010 ONSC 7137. In the case, the deceased died without a will, and was survived by seven siblings. After the deceased’s death, an individual came forward alleging that she was the deceased’s daughter (this was denied by the siblings). A disagreement arose over the proper manner of burial of the deceased’s remains.  The deceased was a member of the Whitefish River First Nation, and his siblings wanted him to be buried in accordance with traditional Anishnabek practices. The (alleged) daughter argued that at the time of his death, the deceased was no longer an adherent to the Anishnabek belief system and had wanted to be cremated.

The siblings brought a motion seeking the appointment of an estate trustee during litigation for the limited purpose of disposing of the deceased’s remains.  Section 29(1) of the Estates Act provides that where there is no will naming an estate trustee, the court has the discretion to appoint (a) the deceased’s spouse/common law partner; (b) the deceased’s next of kin; or (c) the partner and the next of kin.

Although “next of kin” is not defined in the Estates Act, in the case, Justice Stinson considered definitions of the term found in various legal texts and determined that it referred to the person most closely related to the deceased. Stinson J. then considered whether he was satisfied that the (alleged) daughter was the deceased’s natural child.

While there was no DNA evidence and the deceased and the (alleged) daughter did not meet until 2008, Stinson J. found other evidence to suggest a father/daughter relationship (such as that the deceased had signed a statutory declaration that he was the respondent’s father).  He decided that on a balance of probabilities that she was the deceased’s natural daughter. Stinson J. then concluded that as the deceased’s natural daughter, she qualified as his “next of kin” and, accordingly, appointed her as estate trustee during litigation for the purpose of dealing with the deceased’s remains.

Nelson Mandala’s family dispute serves as an important reminder to choose an estate trustee whom you trust to make your burial decisions, and to clearly advise your estate trustee and family members about your burial wishes.

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