“He knows where the bodies are buried” is a throwaway line from Orson Wells’ cinematic masterpiece, Citizen Kane. That line soon took on a life of its own and entered the cultural vernacular. In the world of estates, a more frequent problem is not finding the bodies but deciding where to bury the bodies. In Miller v. Miller, 2016 ONSC 6625, Justice Myers of the Ontario Superior Court of Justice faced an urgent request that a funeral be put on hold; the court obliged in that case.

The applicants and the respondent (a brother) were adult siblings. The applicants moved on an urgent basis without notice to their brother for an order prohibiting him from burying their deceased mother in Toronto as he intended.

The deceased had come to Canada in 2014 to live with the brother after the death of her husband. According to the evidence of the applicants (the brother had yet to file responding evidence given that he had no notice of the application), the brother had isolated their mother from them. For example, they only found out about their mother’s death (she died in hospital) from an aunt, and they found out about the funeral arrangements from a church bulletin.

The applicants argued that they made several attempts to work together with their brother to plan their mother’s funeral (including using local clergy as mediators), but their efforts were rebuffed. The applicants claimed that their mother wanted to be buried in Jamaica, her longtime home, beside her husband. The brother disagreed and moved forward with plans to bury her in Toronto. The applicants then challenged their brother’s ability to make unilateral decisions about her funeral. Given the brother’s intransigence, the applicants claimed they had no choice but to move on an urgent basis to stop the funeral.

Unsurprisingly, the law affords a corpse no legal rights. Rather, the law imposes duties on the estate trustee (i.e. the executor) to dispose of the body of the deceased with dignity. In this case, the deceased died without a will, meaning there was no way to confirm the deceased’s wishes with regards to who would act as her estate trustee or her burial instructions. Because her husband had predeceased her, s. 29 of the Ontario Estates Act stipulates that her children are equally entitled to apply for and be appointed as estate trustee(s). Since the court had yet to formally appoint one of the siblings as estate trustee without a will, the brother’s wishes regarding the funeral did not trump his siblings’ views.

In considering the matter, the court treated the application as a proceeding to appoint one of them as their mother’s estate trustee without a will under s. 29 of the Estates Act. Because the matter had yet to be determined, the applicants wanted the burial to be briefly delayed so that the right of the estate trustee(s) to make burial decisions would be preserved. The court held that there was no prejudice in delaying the funeral; the brother would be given equal chance to put forward his case as to why he should be the estate trustee without a will and therefore have the authority to make funeral decisions.

Courts proceed with caution when faced with a unilateral request made without notice to the other side; in such cases, the courts seek to find the path causing least harm to all sides. Often, that involves maintaining the status quo. In weighing the decision to grant a brief interim injunction, Justice Myers held as follow:

• there were serious issues to be tried – who should be appointed estate trustee without a will and who will ultimately decide where the mother is buried;
• the applicants would suffer an emotional loss, and one which could not be compensated for by money, if the funeral moved forward at this time;
• the irreparable harm in this case is the loss of the entitlement of the to-be-named estate trustee to make funeral decisions; and
• while some people might be inconvenienced if the funeral was postponed, it was a greater inconvenience to go ahead with the burial.

In his usual clear prose, Justice Myers wrote:

Recognizing that estates and family disputes potentially cause distress to all, especially when the topic is as sensitive as burial arrangements, in my view it is most just to freeze the situation and prevent unilateral actions, pending a more informed decision on fuller evidence and argument. While a delay of a funeral for a few days or weeks is inconvenient and distressing, it pales in comparison to holding a possibly improper burial and then considering an exhumation and re-burial before a [full] hearing can be held.

Justice Myers then urged the parties to set aside their grievances and come to an agreement on their mother’s burial arrangements, noting “there is no weakness or prejudice” in doing so.

The court then issued an interim injunction restraining the brother, anyone acting on his instructions, and anyone with notice of the order (which included a church and mortuary), from burying the deceased until the hearing of the full application to appoint an estate trustee or further order of the court. The full hearing, which would move forward on proper notice to the brother, was scheduled within 10 days.

Happy litigating; and watch out for those bodies.

Justin