A common misconception is that a deceased’s “next of kin” has the right to deal with the deceased person’s body. However, that is not necessarily the case. In law, there can be no “ownership” of a deceased person’s remains. It is the Estate Trustee, named in the Will, who has the legal right to the custody and possession of the deceased’s body, and it is the Estate Trustee who has the obligation to ensure that the body is disposed of. Where the deceased dies without a Will, or in situations where the Estate Trustee named in the Will is unable or unwilling to act, then the Court may appoint an Estate Trustee, pursuant to section 29 of the Estates Act.
At common law, the duties of the Estate Trustee in respect of the possession, custody and disposal of the remains of a Deceased have been identified as follows:
- To dispose of the body in a decent and dignified manner (See Abeziz v. Harris Estate 1992 CarswellOnt 3803, 3 W.D.C.P. (2d) 499,  O.J. No. 1271 (Gen.Div.);
- To dispose of the body in a manner befitting the Deceased’s station in life (See Schara Tzedeck v. Royal Trust Co.,  1 S.C.R. 31,  4 D.L.R. 529 at paragraph 12); and
- To provide particulars of the disposal of the Deceased’s remains to the
Deceased’s next of kin (See Sopinka (Litigation Guardian of) v. Sopinka, 2001 CarswellOnt 3234, 55 O.R. (3d) 529, 42 E.T.R. (2d) 105).
So, although a testator may include funeral and burial wishes in his or her Will, The Estate Trustee is not legally bound by them. The Estate Trustee may consider the deceased’s wishes, but has the right to dispose of the body as he or she sees fit, so long as they abide by the law.
Clearly, this is yet another reason why selecting the Estate Trustee is such an important decision! But that will be discussed in a future blog…