Crafting a will that could result in disputes among executors is an invitation to expensive litigation.
A bitter family dispute over a mother’s ashes has resulted in an unusual court decision and an important lesson for every family about the risks of leaving unclear burial instructions.
Anne Curry lived in Cape Breton, N.S., and died there in 2022 at the age of 90, leaving six surviving children. Her will named three of them as executors. It contained a clause stating that in the event of a disagreement the decision of a majority would govern.
Anne’s remains were cremated. One daughter wanted her mother’s ashes divided. Half would be buried beside Anne’s late husband, Leo, in his family’s plot in one cemetery. Anne’s name was already etched onto the large family monument there. The other half would be buried beside Anne’s Ukrainian parents in another cemetery. Two other daughters wanted all the ashes to be buried with Anne’s parents.
Unable to reach an agreement, the siblings eventually wound up before Justice John A. Keith in the Supreme Court of Nova Scotia in 2023.
The court heard evidence that Anne had left a document outlining her last wishes. She wrote that she wanted her ashes buried with her parents because she did not want to rest near her husband’s family who had never accepted her as a “Ukrainian girl.” Other evidence indicated that Anne loved her husband despite serious marital difficulties and years of living separately.
After hearing the evidence, the judge wrote, “Overshadowing the legal questions in this case are the complexities of family dynamics, knotted and gnarled by conflicted feelings of loyalty and love; devotion and distrust; sibling respect and sibling resentment.”
“The resulting dissonance,” he added, “is obviously not unique to the Curry family, but it does scrape through the evidence. Each side claims a deep understanding of their mother’s final wishes; but their respective understandings are incompatible.”
In his 13,000-word decision, Justice Keith ordered Anne’s ashes be divided equally between the two burial sites.
Perhaps the most fascinating part of the ruling is not the actual outcome but the references to the law itself.
Most people assume that burial instructions are binding. They are not. Canadian law dating back to an English case in 1882 is that there are no property rights in a dead body.
A will or other document with funeral or burial instructions is not binding on the executor.
A deceased person cannot legally own or dispose of his or her remains in the same way they could bequeath a piano or a bank account. The legal responsibility for burial or cremation falls primarily on the executors.
Under our law, executors have an overriding obligation to dispose of remains in a dignified and respectful manner. The wishes of the deceased are important and should be respected but are not binding. When making a will it is important to choose executors who will carry out the wishes of the will-maker.
Crafting a will that could result in disputes among executors is an invitation to expensive litigation.
To avoid a court dispute over cremation, burial location, religious practices or funeral arrangements, it is important to choose a trusted executor who knows the wishes of the deceased and will carry them out.
Many people spend enormous effort planning tax strategies, investment structures and inheritance arrangements but give little thought to funeral and burial instructions.
I often advise clients to make their own arrangements by pre-planning or prepaying for their own funeral and burial arrangements with a funeral home. Doing so can avoid emotional warfare among survivors and ease the burden on family or friends of making final decisions.