( Disponible en anglais seulement )
Testators generally put much thought into the distribution of their estate. In addition, many testators give instructions for their funeral, how their remains are to be handled and where their remains should be placed. However, many testators may not consider that their expressed preferences may not be the determining factor in what happens to their remains after death, or that their estate planning may lead to disputes regarding what should happen to those remains.
In Re: Taschuk, Justice Lema of the Alberta Court of Queen’s Bench considered a situation where joint personal representatives could not agree on where the remains of the deceased should be buried. Both personal representatives were sisters of the deceased. One said the remains should be interned in Edmonton, where the deceased had lived for the last 10 years of his life. The other said the remains should go to Vilna, a small town Northeast of Edmonton, where the deceased had lived for his entire life prior to moving to Edmonton.
In Alberta, the right to control the disposition of human remains is assigned by virtue of the General Regulations of both the Funeral Services Act and the Cemeteries Act. Each of these regulations provides an ordered list of persons who shall determine the issue. If the right devolves to more than one person (other than personal representatives – more on that later) and those persons can’t agree, then the right devolves to the oldest person, descending down by age.
In Taschuk, the Court was faced with a circumstance where the legislation did not provide for a priority as between the personal representatives. With no direct legislative guidance, the Court looked to the responsibilities of the personal representatives under the Estate Administration Act and the Court’s ability to make orders to facilitate the performance of the personal representatives’ duties.
Justice Lema posited several factors to consider in determining between the two personal representatives’ positions:
- The impact of the deceased’s will. In this case, the will did not speak to this question. In any event, except in British Columbia, the directions of the deceased for the disposition of his remains are not binding.
- The deceased’s wishes expressed before death. In this case, the Court found the deceased had not expressed a wish to be buried in either place.
- The deceased’s quality of life in each place. In this case, the Court found the deceased had been positive about both Edmonton and Vilna, at different stages in his life.
- The deceased’s family’s wishes. The deceased’s parents had previously indicated they hoped the deceased would be buried at the same location as them. However, those plans were made more than 40 years before the deceased passed away.
- Relative cost of the options. In this case, a plot had long ago been purchased in the Vilna cemetery, however a similar plot had recently been purchased in Edmonton at no charge to the estate. This was a neutral factor.
- Nature of, and family links to, the cemeteries. Both proposed cemeteries were Ukrainian Orthodox, which was the family religion, although the deceased was not particularly religious.
- Visiting intentions. Various members of the deceased’s family indicated an intention to visit his grave in either cemetery.
- Overall connection between deceased and the personal representatives. The personal representative who sought burial in Edmonton was also the guardian of the deceased up to the date of his death. She had a strong personal and almost parental relationship with the deceased.
Ultimately, the Court determined that the overall connection between the deceased’s guardian and the deceased was the determinative factor in this case, and the deceased was directed to be buried in Edmonton.
The Taschuk case demonstrates the importance of planning not only for the disposition of your estate, but also for funeral and burial arrangements. While this planning may not ultimately determine how your remains are dealt with, it will assist your estate and your family in resolving these issues (which can become contentious). Had the deceased in Taschuk expressed preferences for the disposition of his remains, his family and estate would likely have avoided the costs, both financial and emotional, of a contested court application.
Lawyers at Miller Thomson LLP have extensive experience in estate planning and resolving estate disputes. Feel free to contact us any time for advice on these issues, and any other estate related issues.
