The “Plot” Thickens – A Grave Situation?

Firstly – my apologies for the puns (both of them).

An issue that rarely receives judicial consideration was the subject of a recent Ontario Superior Court of Justice application – the rights of descendants to burial plots.

In Smith v. Cataraqui Cemetery Company, the Court was asked to determine whether the applicants, certain lineal descendants of Joseph Smith, were entitled to interment rights at Cataraqui Cemetery in Kingston Ontario. The name of the case caught my eye as I recognized the cemetery as the resting place of Sir John A. MacDonald.

Brothers Darius and Joseph Smith purchased sixty-four plots for interment of human remains in the Cataraqui Cemetery in 1869 for which they were given a “deed” to certain plots. The deed included the following grant:

to have and to hold the above granted Premises to the said Darius Smith and Joseph Smith and their Heirs and Assigns forever subject, however, to limitations and conditions with the privileges specified in the rules of the said cemetery…that they are actually and lawfully seized of the Land hereby granted.

On paper, Darius and Joseph Smith remain the interment right holders of the sixty-four plots and there was no evidence that either transferred their interment rights while they were alive or devised their rights by way of will. The cemetery took the position that unless the applicants could prove that they are interment right holders of any of the Smith plots, none of the remaining plots purchased by Darius and Joseph Smith can be used and, in effect, these plots should forever be sealed. The question then was whether the grant under the deed was sufficient to pass interment rights to descendants.

The Court reviewed the general rights of interment at common law. A person purchases not the land to which they wish to be interred, but the right to be interred in a specified plot. The purchaser is provided with an Interment Right’s Certificate as a record of how many rights were purchased and where, in the cemetery, the rights are located.

The Court considered the application of the Funeral, Burial and Cremation Services Act (the Act), which came into force July 1, 2012, and replaced the old Cemeteries Act. The Act specifies that that only an interment rights holder, or such other person to whom the interment rights have been assigned, has the right to inter human remains in the plot to which the interment rights relate. The cemetery therefore took the position that the applicants were required to show that they had such a right of interment as required by the Act.

On the facts, the Court found that the intention of the parties to the 1869 deed was to permit the transfer of interment rights to heirs of Darius or Joseph. It defined “heirs” in the deed broadly to include lineal descendants or family members of lineal descendants of either brother. The fact that the cemetery had permitted the burial of over twenty Smiths since 1869 without formal proof that they are interment right holders was a factor in the Court’s decision. Also important was the obvious fact that the brothers had purchased 64 plots. What did the cemetery think they intended to do with them?

The Court found further that the requirement under the Act that the right to interment be direct or by way of assignment does not have retroactive application so as to remove pre-existing substantive rights. Therefore, the deed was effective to transfer the Smiths’ interment rights to their lineal descendants and spouses without assignment.

Finally, the Court applied the law of estoppel to find that the cemetery’s silence and its acts in permitting other Smith burials without formal proof of interment rights prevents it from now insisting that the applicants prove such rights.

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