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Written by: Bryan Gilmartin
Posted on: April 27, 2021
Categories: Commentary, WEL Newsletter
Death is a reality of life that the majority of us choose not to think about. That is of course unless you’re like me. Having grown up in my family’s funeral home and now practicing in this area of law, death (for better or for worse) is something that has and will always be top of mind. After all, as the old saying goes, we aren’t getting out of this world alive. Though beliefs concerning what the afterlife has in store differ amongst us, what is consistent is the issue of dealing with what remains.
Issues surrounding human remains carry significant emotional, cultural, religious, ethical, and legal implications. Issues that drafting solicitors and estate trustees often face when assisting testators with their planning considerations, including the future treatment of their own remains. Estate litigators too, often deal with issues of the disposition of human remains and burial and plot ownership when family members disagree over the ultimate treatment of the remains of a deceased person. It is one that lawyers, legislators, and courts alike must address, to ensure, from a policy perspective that remains are disposed of in a respectful, lawful, hygienic, and appropriate manner.
Though the law concerning the treatment of remains is relatively straightforward and well-settled, prioritizing the role of the estate trustee, and the dignified treatment of the deceased’s remains, is also an area subject to subtle pressures from a societal perspective as times and practices continue to evolve. Our culturally and religiously diverse population means that different practices are uniquely followed, while at the same time, priorities are shifting toward practical considerations of cost, as well as environmental and efficiency concerns. These cultural shifts affect to a limited degree, the direction the law will take in addressing the thorny and sensitive issues surrounding human remains, yielding substantially to the common law treatment of who has the ultimate authority to deal with the remains.
This is our Newsletter introduction to what will be a weekly blog series that will explore these issues, the relevant legislation and case law, and its application to our ever-changing and increasingly diverse population. STAY TUNED! Watch for our Blog!
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