Who Owns Your Loved One’s Remains?: A Guide to Possessory Rights of a Deceased Person

Who Owns Your Loved One’s Remains?: A Guide to Possessory Rights of a Deceased Person

Losing a family member is an extremely difficult situation for anyone. Not only is it incredibly taxing emotionally, but you may have to deal with planning a funeral, settling an estate, dealing with banks or life insurance companies, or a number of other uncomfortable obligations that may fall to you. The last thing you want is a fight with your family members over what is to be done with the deceased person’s remains. Maybe you want them buried in the family burial plot. Maybe cousin Joe wants them cremated. Maybe the deceased person expressed a desire to be buried at sea. So many conflicting opinions can create problems unless someone is designated to make these decisions. Thankfully, there is established law on this issue to help prevent unnecessary arguments.

It has been repeatedly held that there can be no property rights in a corpse, but there can be a duty to bury or otherwise dispose of the remains of a person. In the cases where such a duty exists, there is a right of possession of that body for the purposes of fulfilling that duty. This right of possession usually belongs to the estate trustee/executor, or the administrator of the estate. Therefore, the estate trustee has the final say on what happens to the remains of the deceased. The rights of the estate trustee actually supersede the wishes of the deceased person, if the deceased had left instructions on how to deal with his remains. One of the first cases to illustrate this principle is Williams v. Williams (1882).

In Williams, the deceased, in his will, directed that his remains be given to Miss Williams, who was instructed to cremate the remains and place them in a specific vase. However, Miss Williams was not appointed as the executor of deceased’s estate under the deceased’s will. The executors decided to bury the deceased’s body, apparently against the wishes of the deceased and Miss Williams. Miss Williams brought an application to have the deceased’s body dug up and cremated. Miss Williams’ application failed. The Court held that there is no property in a corpse, and a person cannot effectively dispose of it in his will. Any directions given by the deceased with regard to the disposal of his body are not enforceable as a matter of law. The executors were within their rights to arrange for the deceased’s burial.  

An executor, being subject to the duty of disposing of the remains, has a right of possession of the body for burial even as against the spouse and family of the deceased. Therefore, the executor has the right to determine the place and manner of the burial. However, there are some exceptions to this.

In Heafey v. McRae (1999), the court held that an executor’s rights to possession and control of the deceased’s remains was overridden by the Cemeteries Act (Revised) R.S.O. 1990, c. C.4, concerning digging up someone who has already been buried (disinterment). In Heafey, the rights of the “interment rights holder” which was the deceased’s step-daughter in this case, superseded the rights of the executor at common law. Another case illustrating the powers of the Cemeteries Act is Johnston v. Alberta (Director of Vital Statistics) (2008).

In Johnston, An RCMP officer was killed while on duty and was buried in Alberta. The deceased’s wife then learned that the deceased was entitled to be buried in an RCMP cemetery in Saskatchewan. The wife applied for and was granted a permit to have the deceased’s body disinterred for the purposes of moving it to the other cemetery. The deceased’s mother objected to the issuance of this permit, and asked for it to be revoked. The Cemeteries Act provided for a priority list of persons who can control the body of a deceased person. In this case, the wife had first priority with no competing claims of equal rank, because the deceased’s mother ranks lower than the deceased’s spouse. The Court refused to order that the wife’s permit be revoked or withheld. The wife was allowed to relocate the remains.

If there are multiple people with equal rank, the director must provide notice to all persons of the same or higher rank when something is proposed with respect to the deceased’s remains. It appears that the Cemeteries Act provides rights to the deceased’s family after the deceased has been buried, to prevent the executor from digging up the deceased’s remains for the purposes of reburial. On the flip side of this, the executor’s possessory rights continue if it is the family member who is seeking to dig up the deceased’s remains.

In Ontario, it is paramount that the remains of a deceased person are dealt with appropriately and within a reasonable amount of time. In his opinion in Abeziz v. Harris Estate (1992) Justice Farley states:

I understand that there is no legal right in a corpse (absent possible some interim element under the Anatomy Act, R.S.O. 1990, c. A.21 for medical research). Rather than rights there are only obligations. There is an obligation the law places on the executor if there is one. The fundamental obligation is that the body be appropriately dealt with – that is disposed of in a dignified fashion. Burial and cremation come to mind as being specifically sanctioned in Ontario.

This obligation on the executor is a serious one, as failing to bury or cremate a person’s remains is an indictable offence under the Criminal Code of Canada s. 182. Violation of this law can carry a prison sentence of up to five years. Thus it is very important that the executor takes their obligation to dispose of the remains of the deceased in an efficient and reasonable manner. The rules for cremation are governed by the Cemeteries Act.

Ontario courts have also held that religious laws or beliefs are not a factor the court can take into consideration when deciding who should decide what is to be done with the remains of a deceased person. The executor may decide to dispose of the deceased’s remains in a way that is against the deceased person’s religion. As long as this is done in a dignified fashion, there is no religious basis for overriding the executor’s decision.

Essentially, the executor or administrator of the deceased’s estate can do whatever they feel is best with respect to the disposition of the deceased’s remains, and there is not much that anyone can do to stop them, so long as what the executor plans to do is reasonable and they are not acting capriciously. This includes the deceased themselves, as an express wish as to the disposition of a person’s body – even by will – cannot be enforced by law. Thus, the executor may choose to ignore the deceased’s wishes.

Once a body has been buried, however, the executor’s rights seem to be limited. They no longer have the right of control over the deceased’s remains, and if they wish to dig up or “disinter” the deceased’s remains, they can be easily overridden by the deceased’s family, according to the Cemeteries Act. On the same token, if it is the family member that wishes to disinter the remains of the deceased, the executor may override this decision. Basically, once the body is in the ground it stays in the ground, unless both the executor and the highest priority family member agree otherwise.

Ryan Petrovski