Executor’s power and constraints in disposing human remains

By Doug Carroll | May 13 2014 02:51PM
At issue

A Will enables a person to name an executor to carry out the Will’s terms. The executor becomes legal owner of the property for the purpose of maintaining and eventually distributing assets to the estate beneficiaries.Generally, the executor also has the authority and obligation to deal with the body or ‘human remains’ of the deceased.

However, this is not the same as ownership interest over property, and depending on province, the executor’s powers may be affected by the deceased’s statements or actions prior to death. Here are some examples.

Trillium Gift of Life Network Act, RSO 1990, c H.20

In Ontario, a person may give consent to the use of his or her body after death for “therapeutic purposes, medical education or scientific research”. The person must be at least 16 years of age to give consent. The consent must either be in writing, or have been uttered in the presence of two witnesses at the time of the person’s last illness.

Upon the person’s death the consent is binding, though there can be an exception if there is reason to believe that the consent was withdrawn. By implication, the withdrawal of consent can only come from that person.

Cremation, Interment and Funeral Services Act, SBC 2004, c 35, s. 6

In British Columbia, an executor will be bound by instructions that a deceased person has given with respect to disposition of human remains or cremated remains, so long as:

“(a) the preference is stated in a will or preneed cemetery or funeral services contract,

(b) compliance with the preference is consistent with the Human Tissue Gift Act, and

(c) compliance with the preference would not be unreasonable or impracticable or cause hardship.”

Civil Code of Québec, LRQ, c C-1991, article 42

Quebec allows a person to provide direction as to both funeral and final remains. In fact, even a minor may do so. Per article 42 of the Civil Code (produced in part here),

“A person of full age may determine the nature of his funeral and the disposal of his body; a minor may also do so with the written consent of the person having parental authority or his tutor.”

In Re: Estate of Freddy Todd Loucks, 451 MDA 2013

Of interest, this Pennsylvania case shows the extent to which some people may go to maintain control over human remains.

Fred Loucks died in a vehicle crash at age 43. His son Cameron was named estate administrator. Disputes with the father’s “paramour” Monica Miller brought the estate to the courts a number of times. This included claims to the deceased’s ashes, with Ms. Miller eventually being ordered to deliver the urn to the funeral home to be divided in half.

It was later suspected and confirmed that the contents were not human ashes. Ms. Miller was found in contempt of court, and imprisoned for six months.

Practice points

Though the executor may have broad authority pursuant to provincial law, this is not absolute in nature. There remain a number of obligations under common law that an executor must bear in mind when exercising the authority, the nuances of which can be discussed with a lawyer if problems appear to be arising:

  1. Disposal of the remains must be in a dignified manner. Generally burial or cremation would satisfy this requirement, despite that some religions may be against cremation.

  2. Funeral/memorial services and disposition of the remains should take into consideration the deceased’s station in life, and consider the proportionality to the estate assets, particularly where this materially affects estate creditor claims.

  3. The executor is expected to provide reasonable information about these matters to next of kin, and to do so in a timely manner.