Whither My Mortal Remains

While there are many obvious downsides to not having a will, one that may be overlooked is the lack of direction concerning what will happen to a person’s remains.  This is especially problematic where cultural or religious differences may arise.  That was the issue that the Ontario Superior Court of Justice had to deal with in a recent decision.  The deceased died intestate and a dispute arose between his siblings on the one hand and his daughter on the other hand as to how his remains should be dealt with.  The deceased had been a member of the Whitefish River First Nation and his siblings wished to see his remains dealt with according to Anishnabek tradition.  The daughter differed with the siblings as to whether the deceased had continued to adhere to Anishnabek beliefs.

The Court appointed the daughter as estate trustee during litigation for the narrow purpose of dealing with final arrangements for the deceased.  The appointment was made under s. 29(1) of the Estates Act. Absent a spouse (the deceased was not married), that section directs the appointment of an administrator to “next of kin”.  A review by the court of the definition of that term (notably not defined in the Act) determined that offspring are considered decendants of the first degree, wheras siblings are decendants of the second degree.  The appointment therefore falls to a daughter or son before a sibling.

Aside from the many other good reasons to have a will, if funeral rites are important to a person, a will should not only direct a testator’s wishes in that regard but consideration should be given to who will have the power to carry out those wishes.  There are enough estate issues that can foster divisiveness.  They should not start with the funeral.

Buswa v. Canzoneri

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