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From time to time, family relationships are strained, if not destroyed, over how a deceased loved one is to be laid to rest. Where family members cannot come to agreement, the law indicates how this emotionally charged question will be resolved.

In Canada, the Estate Trustee (Executor) has the right to possess and dispose of a deceased’s remains, including the place and manner of disposal. The Estate Trustee is not ¬†obligated to follow the wishes expressed by the deceased while alive or in their will or memorandum. They also have a duty to:

  1. ensure that the deceased’s burial arrangements are not excessively expensive to unfairly affect their creditors; and
  2. provide relevant information to family members regarding disposal of the deceased’s body on their request.

In Lajhner v. Banoub, [2009] O.J. No. 1327, the parents of a man who died without a will believed their son would want to be cremated; but the man’s supposed spouse believed that as a Muslim whose faith does not accept cremation, he would want to be buried.

The issue became who was most likely to be appointed as the Estate Trustee under relevant legislation, since there was no will containing this appointment. The legislation lists in priority the persons entitled to become a deceased’s Estate Trustee:

  1. the deceased’s legal spouse or person they were living in a common law relationship with just before they died;
  2. the deceased’s next of kin; or
  3. the person mentioned in 1. above and the next of kin.

The court decided that the parents would most likely be appointed as Estate Trustees, as the “spouse” was not in a common law relationship with the deceased just before he died, and therefore did not qualify under the legislation. The parents were, therefore, granted the duty to dispose of the deceased’s remains.

Download the PDF: Concepts Newsletter – Spring 2011

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