As planners working with elderly clients and their families, we encourage people to plan their lives until the end of life and document their wishes for the care of their body after death. People often express their wish to return to a rural community for burial. However, since the COVID pandemic, it is surprising how much has changed in small-town cemeteries across Ontario. Be sure to also plan for interment rights for burial, or there may be significant administrative duties for the executor or family before the deceased can be buried according to their wishes.

In a previous article on All About Estates, my colleagues C Weigl and D Vasilounis wrote about interment rights in Ontario. They suggested that a lack of planning related to interment rights can be problematic. They drew attention to the following key points:

• The testator cannot impose binding instructions on the executors and trustees regarding their burial; however, most executors and trustees (often loved ones) would do their best to honour a testator’s burial wishes.
• Cemetery operators do not sell the land itself when granting interment rights; they sell the right to be buried in a grave or a plot.
• In Ontario, the Funeral, Burial and Cremation Services Act, 2002 is the statute for regulating interment rights. A deceased person cannot hold interment rights, so the holder is the one who has purchased the rights or the one to whom the rights have been assigned.
• Ontario cemeteries appear to recognize that interment rights can be gifted through a will like other property.
• However, cemeteries have their own policies and bylaws, which affect a range of issues, such as notification for interment rights, permission for burial, and sale of remaining interment rights.[1]

While I don’t often write about personal matters, I decided to share my experience in this blog post as an example of a person experiencing significant administrative burdens regarding interment rights.

My mother recently passed away at one hundred years of age. Her wish is to be buried in a family plot in a small town near where she was born in southwestern Ontario. During the COVID pandemic, the manager of the cemetery in the small town passed away, and the cemetery administration was transferred to the municipality located in another town. The Registrar of the municipality explained that they are still doing their due diligence concerning cemeteries they have recently taken over. Eight of the twelve cemeteries under their authority are inactive, and only four remain active.

The cemetery where my mother wishes to be buried is still active, and my grandfather bought the Certificate of Interment Rights for a plot of eight graves in the 1930s. There are three graves open. My mother planned her funeral in detail and documented her wishes. We signed a pre-planned contract with a funeral home and thought we had a detailed plan in place.

In her plans, mother referenced a “deed for the family funeral plot,” which must have been the Certificate, but it was never found. She was an only child and the sole heir of my grandparents. In addition to not finding the Certificate, there is no mention of transferring interment rights for the family plot in her will.

Within the last decade, a family member was buried in one of these graves; however, this was before the cemetery administration was transferred to the municipality. Since the cemetery transfer occurred, the municipality has been doing their due diligence on any requests for burial.

As my mother’s executor I have had to go through a lengthy process with the municipality to confirm that my grandfather did indeed purchase the Certificate of Interment Rights for the family plot. Previous records were not meticulously kept, and I was asked to produce a detailed family tree (going back to the 1880s) with birth dates and death and location dates dating back to my grandfather, who purchased the original certificate. With my mother being an only child and her will being silent on interment rights, the Registrar also requested that my sister and I provide Affidavits of Heirs and Authority confirming we are the only surviving heirs at law of the Original Interment Rights Holder and that we seek permission to bury our mother in the designated family plot and a specific grave.

In summary, as planners, we encourage people to pre-plan their funerals and document their wishes. Those of us who were born in small towns may wish to return to a rural community to be buried. But times have changed, and small cemeteries are either inactive or are now administered by municipalities with various rules and bylaws. While this article addresses burials in rural communities, it is essential to include interment rights planning for burial in any estate planning advice, regardless of location.

[1] https://www.ontario.ca/page/funeral-burial-cremation-alkaline-hydrolysis-or-scattering-your-rights