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What Remains Series #6: Is the Estate Trustee Obligated to Consider the Deceased’s Wishes?

The obligation of the estate trustee to deal with the deceased’s remains is accompanied by decision-making authority on the part of the estate trustee.

The common law requires that estate trustees treat the body of a deceased with dignity, dispose of the remains in a decent manner, and inform family members of the disposal. Beyond those duties (and any potential limitations on authority) an estate trustee may dispose of the deceased’s remains in a manner seen to be befitting of the deceased’s station.

The expressed wishes of a deceased may be taken into consideration by an estate trustee, but do not bind the estate trustee.

In the 1882 English decision of Williams v Williams,[1] referred to above, Kay J, ruled that the wishes of a testator respecting the disposition of his/her body expressed in a Will cannot be enforced in law.

In that case, the deceased had written in a codicil to his Will that he wished for his executors to give his body to a Miss Williams and that his body was to be cremated with specific instructions given to Miss Williams.  Following the deceased’s death, his body was buried at the direction of his executors.  Miss Williams then had the body disinterred and sent to Milan where it could be legally cremated, as cremation was not legal in Britain at that time.  Miss Williams followed the deceased’s instructions as set out in the codicil and subsequent letter and then claimed the expenses from the executors.  The court declined to uphold the deceased’s wishes, even though they were expressed in a codicil.  The Court relied on the premise that there are no property rights over a body such that a person cannot direct the disposition of a body – even one’s own – by Will.  The court dismissed Miss William’s claim for reimbursement of her expenses.

The decision of Williams v Williams, is cited favourably in Ontario for the premise that a deceased’s wishes in respect of remains are not enforceable.[2]

The case law in Ontario clearly provides that while an executor may abide by the expressed wishes of the deceased, he/she is not bound to do so.[3]  At paragraph 20 of Lajhner v. Banoub,[4] Justice Gunsolos explained:

Even in circumstances where a deceased expresses the wish to be cremated that is not dispositive of the issues, as an expressed wish of a person directing the disposition of his or her body cannot be enforced in law.  Rather, the duty to dispose of the remains falls upon the administrator of the deceased’s estate…

As such, an estate trustee is obliged to deal with the deceased’s remains but has no obligation to abide by the wishes of the deceased in that regard.  The decision is entirely that of the estate trustee, as long as abiding by the duties imposed at law.

[1] Williams, supra note 14

[2] Saleh, supra note 40 at para 7

[3] Abeziz, supra note 27 at para 23, Saleh, supra note 40 at para 27; Lajhner, supra note 29 at para 21

[4] Lajhner, supra note 29

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